Aerovox Corp. of Myrtle Beach

National Labor Relations Board - Board Decisions

Jul 8, 1968

172 N.L.R.B. 1011 (N.L.R.B. 1968)

AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1011
Aerovox Corporation of Myrtle Beach, South
Carolina and International Brotherhood of Elec-
trical Workers , AFL-CIO, Local Union No. 382.
Cases 11-CA-3214, 11-CA-3271, 11-CA-3286.
11-CA-3305, 11-CA-3337, 1 1-CA-3378,
I 1-CA-3403, and 1 1-CA-3407
July 8, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On March 27, 1968, Trial Examiner Josephine H
Klein issued her Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. She further found that Respon-
dent had not engaged in certain other unfair labor
practices and recommended that such allegations
be dismissed. Thereafter, the Respondent filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified herein.'
1. We do not agree with the Trial Examiner's
finding that Respondent discharged Robert Grimm
in violation of Section 8(a)(3) of the Act.
Grimm, a known union adherent, had been em-
ployed by Respondent for approximately 2 years
before his discharge. He was a machine operator on
the third shift. At the time in question, there was no
regularly assigned foreman for this shift. Kenneth
Johnson, second-shift foreman, stayed over for
from 2 to 5 hours on the third shift, and Karl Allen,
first-shift foreman, who had general supervisory
authority over all three shifts, came in for a few
hours before the beginning of the first shift. As
found by the Trial Examiner, employees on the
third shift did not like Johnson and were reluctant
to recognize him as their foreman. Grimm admitted
that a short while before he was discharged he and
another employee had refused to obey Johnson's
order to clean a machine because Allen had not
told them to do so. Other employees testified that
Johnson "was on them" from the beginning of his
practice of staying on after the end of the second
shift. Johnson himself testified that within a few
days after he began to exercise supervision of the
third shift he criticized the workers for making ex-
cessive scrap. It is obvious that there was bad feel-
ing between Johnson and the employees on the
third shift which had nothing to do with the Union's
organizing drive.
While working on August 11, 1967, Grimm left
his machine to go to the water fountain. On his
return he stopped talk with a fellow employee, an
infraction of plant rules. Johnson observed the in-
cident and reprimanded Grimm. An argument en-
sued between the two men during which Grimm
used profanity to Johnson. Thereupon, the latter
suspended Grimm and ordered him to leave the
premises. Grimm refused and sought to telephone
Allen. Finally, Johnson called a plant guard who
escorted Grimm from the premises. When Allen ar-
rived later in the day, he discharged Grimm.
The Trial Examiner found, in substance, that the
assigned reason for Grimm's discharge was a pre-
text and that the real reason was Grimm's union ac-
tivity. Contrary to the Trial Examiner, we are not
satisfied that the General Counsel has proved the
pretext theory by a preponderance of the evidence.
As is apparent, the employees, including Grimm,
for some time had resented Johnson as a super-
visor, and Johnson in turn criticized the employees.
When Grimm flouted Johnson's authority on Au-
gust 11, and cursed him, Johnson reacted in a not
unusual manner by suspending him Grimm still re-
sisted Johnson and had to be escorted from the
plant by a guard When Foreman Allen, who was in
charge of all three shifts and thus superior to John-
son, reported for work he sustained Johnson by
discharging Grimm. It seems to us that Grimm was
guilty of a serious act of insubordination toward
Johnson and that he was discharged for that reason.
The mere fact that an employee is known by his
employer to be an active union adherent does not
immunize him from legitimate disciplinary action.2
There is no evidence that Respondent tolerated in
other employees acts of insubordination similar to
that for which Grimm was discharged, and there-
fore there is no basis for finding disparate treat-
' As the Regional Director did not resolve the employee status of Mishoe
or Hucks in the representation case, we find it unnecessary to consider the
Trial Examiner 's views on relitigability
' Murray Ohio Manufacturing Co , 128 NLRB 184
172 NLRB No. 97
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. Under the circumstances, we find that the
General Counsel has not proved that Respondent
discharged Grimm for a discriminatory reason and
we shall dismiss the complaint as to Grimm.
2. We agree with the Trial Examiner's finding
that Respondent's letter of February 3 was violative
of Section 8(a)(1). The letter stated, "Remember
the Union cannot guarantee present benefits to
continue under a union contract. Bargaining starts
from scratch," and went on to state that a strike
was the only recourse against an "unwilling" em-
ployer. The tone of the letter left little doubt but
that Respondent would be such an "unwilling" em-
ployer. In the context of the other substantial unfair
labor practices committed by Respondent, we find
that the letter was calculated to imply a threat of
reprisal should the employees select the Union and
was also intended to make the employees realize
the futility of electing a union; it was thus coercive.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below4 and hereby orders that the Respondent,
Aerovox Corporation of Myrtle Beach, South
Carolina, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified.
i Astronautics Corporation of America, 164 NLRB 623
' We hereby delete the name of Robert J Grimm wherever it appears in
the Trial Examiner's Recommended Order and in the notice
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN , Trial Examiner : Pursuant to
charges filed by International Brotherhood of Elec-
trical Workers , AFL-CIO ( the Union), against
Aerovox Corporation of Myrtle Beach, South
Carolina (Respondent ), on January 6
(11-CA-3214), March 20 (11-CA-3271), and
April 6 (11-CA-3286), a complaint and an
amended consolidated complaint were issued on
February 20 and April 24, 1967,1 respectively. A
hearing was held thereon in Myrtle Beach, South
Carolina , on May 9 and 10. Additional charges
were filed on May 4 (1 1-CA-3305 ), June 12
(I1-CA-3337), and June 16 (11-CA-3378), upon
which a second consolidated complaint was issued
on June 21 . The General Counsel then moved to
reopen the record of the hearing on the original
consolidated complaint and to consolidate the
latter consolidated complaint for further hearing.
Over Respondent 's objections , the General Coun-
sel's motion was granted and further hearings were
held on August 8, 9, and 10. On September 18, be-
fore the Trial Examiner had issued a decision, an
additional complaint was issued based on charges
filed on June 9 (11-CA-3403) and August 16
(1 1-CA-3407). On motion of the General Counsel,
the record was again reopened, over Respondent's
objections, and the new complaint consolidated
with those previously heard. Further hearing was
held on October 31.
At all the hearings all parties were afforded an
opportunity to be heard, to examine and cross-ex-
amine witnesses, and to present documentary and
other evidence. The parties waived oral argument,
but the General Counsel and Respondent have each
filed two briefs. Upon the entire record, from ob-
servation of the witnesses, and on consideration of
the briefs, the Trial Examiner makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTIONAL FINDINGS
A The complaints allege, Respondent admits,
and the Trial Examiner finds that Respondent, a
South Carolina corporation, is, and at all material
times has been, engaged in the manufacture of
capacitors and other electrical equipment at its
plant in Myrtle Beach, South Carolina. During a
representative 12-month period Respondent manu-
factured, sold, and shipped from its Myrtle Beach
plant finished products valued in excess of $50,000
to points directly outside South Carolina. Respon-
dent is now, and has been at all material times, an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.'
B. The complaints allege, Respondent admits,
and the Trial Examiner finds that the Union is, and
at all time material herein has been, a labor or-
ganization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
CHRONOLOGY
Early in November 1966 Respondent's main-
tenance employees, as a group, requested improved
benefits from Respondent's management. Receiving
no satisfactory answer to their requests, the em-
ployees called in the Union, which commenced an
organizing campaign among the maintenance em-
ployees early in December. On December 6, 1966,
the Union made a bargaining demand and filed a
representation petition. After vigorous campaigns
:)y both the Union and Respondent, the Union won
an election and on February 24 was certified as the
representative of the maintenance employees at
Unless otherwise stated , all dates herein are in 1967
National Labor Relations Act, as amended , 29 U S C 151, et seq
AEROVOX CORPORATION OF MYRTLE BEACH, S.C.
Respondent's Myrtle Beach plant. Case
I 1-RC-2472.3
The Union thereupon extended its organizational
activity to the production employees. A representa-
tion petition was filed and, pursuant to a Decision
and Direction of Election issued by the Regional
Director, an election was held on July 27. Case
I1-RC-2539. On November 16, after the close of
the last hearing in the present proceeding, the Re-
gional Director issued his decision on certain chal-
lenged ballots and certified the Union as bargaining
agent for the production workers. On January 8,
1968, the Board denied Respondent's request for
review.4
The first hearing in the present consolidated
proceeding in May (11-CA-3214, 3271, and 3286)
involved alleged acts of interference and dis-
crimination by Respondent in the course of the
campaign among the maintenance employees. The
hearings in August (1 I-CA-3305, 3337, and 3378)
concerned alleged acts of interference and dis-
crimination in connection with the preelection
campaign among the production employees. The
hearing on October 31 (1 1-CA-3403 and 3407) in-
volved the alleged discriminatory discharge of two
employees after the close of the August hearing in
the present case.
A. Alleged Violations of Section 8(a)(1)
1. The no-solicitation and no-distribution rule
The complaint alleges the promulgation and
maintenance of an invalid no-solicitation rule
between December 1 and 15, 1966, as violative of
Section 8(a)(1). The answer states that the rule
was promulgated "long prior to December of
1966." The rule in question was contained in an
employee handbook issued by Respondent some-
time after November 21, 1966, when Respondent
received copies from the printer. However, the
evidence establishes that the rule had been posted
on the company bulletin boards at least as early as
the fall of 1965. Accordingly, since the promulga-
tion of the rule occurred more than 6 months be-
fore the filing of the initial charge in this case, it
cannot be found to have been violative of the Act.
Mason & Hanger-Silas Mason Co., Inc., 167 NLRB
894. However, since the rule was reissued and
maintained during the 10(b) period, its validity and
application must be considered.
The first sentence of the rule is directed only
against nonemployees5 and was enforced without
discrimination. Thus it cannot be held to violate the
Act. N.L.R.B. v. Babcock & Wilcox Co., 352 U.S.
909, 916.
'Thereafter Respondent sought to contest the propriety of the unit and a
bargaining order was issued by the Board on June 19 Aerovox Corp , 165
NLRB 623, enfd 390 F 2d 653 (C A 4, 1968)
' The facts here stated are taken from the official record in Case
1 I -RC-2539, of which the Trial Examiner takes official notice
The rule continues:
1013
... There shall be no solicitation of any kind,
except as noted below, by employees which in
any way interferes with production.
However, the Company will, as in the past pro-
vide methods for the collection of donations to
Aerovox Charities. This regulation does not
prohibit the solicitation by employees, in case
of death, injury, prolonged illness , or extreme
hardship. The supervisor must be notified of
the nature and time of such solicitations and
permission granted.
The evidence shows that permitted solicitations and
collections were conducted by use of a centrally
located box into which employees could deposit
money if they desired. Employees were not allowed
to circulate among working employees to solicit in-
dividual contributions. Since union solicitation
could not be conducted by means of a stationary
box, and the rule appears to have long preceded the
advent of the Union, the Examiner believes the
quoted prohibition was reasonable and was not
rendered discriminatory by the exceptions as imple-
mented.6
The final paragraph of the rule reads:
Good housekeeping in the plant contributes to
safe and quality production. In order to main-
tain good housekeeping, the distribution in the
plant by anyone of any literature, pamphlets or
handbills will not be permitted except such dis-
tribution as may be made by Management in
aid of its operations.
By its terms, this prohibition covers nonwork areas
and nonwork time. Although it is said to be a
housekeeping rule, no evidence was adduced to
show that it was necessary for this purpose. On the
contrary, Respondent in effect concedes that it was
not necessary, since it defends against this charge
of violation essentially by asserting that the rule was
not enforced. In this connection, Work Manager
Louis M. Palamara testified as follows:
... For example, you are free to solicit on
your own time, and your cafeteria time is your
own time, on plant premises. We would
probably object to the literature being posted
on a bulletin board which is under our direct
control.
0. How about passing out a union handbill
in the cafeteria?
A. I would say we would not penalize any-
body for doing this providing they are there on
their own time. We recognize coffee breaks
and lunch time as being their own time, and
' "There shall be no solicitation of any kind on company time or com-
pany property , including parking lots, by persons not employed by the
Company "
6 The facts here stated distinguish this case from Serv-Air, Inc , 161
NLRB 382, enforcement denied in pertinent part 395 F 2d 557 (C A 10)
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also the people they are handing it out to.
0. How about in the washrooms or
restrooms'
A. In the washrooms , I would say that we
would probably lean to an interpretation of
saying again , recognizing it probably as their
free time. Therefore , no penalty would be in-
voked in the washroom , probably.
Q. Probably?
A. I would say my interpretation- it would
probably come back to me for an interpreta-
tion, and I would say that no penalty would be
invoked would be my interpretation.
Manifestly , since Palamara himself was not sure
that the distribution of literature by employees was
permitted in nonworking areas, the employees cer-
tainly had not been so advised . Foreman Patterson
apparently took the rule at its face value , testifying
that he had asked an assistant supervisor ' whether
employee Harrelson had been distributing union
cards , without suggesting any limitation as to time
or place .' There can be no doubt that the invalidly
broad no -distribution rule, as printed in the em-
ployee handbook and posted on the bulletin board,
would interfere with the employees ' legitimate or-
ganizational activities . It was thus violative of Sec-
tion 8 ( a)(1).9 Dudley Mfg. Corp., 167 NLRB 107,
Lexington Metal Products Co., 166 NLRB 878.
2. Threats and Interrogation
a. Employee Glenn B. Causey testified that
sometime around the end of 1966 he spoke to his
foreman, Paul Oser, concerning a raise . Oser said
that he would speak to Plant Engineer (Production
Superintendent) Sechrest about it. Oser thereafter
told Causey that Sechrest would have to observe
Causey a little longer. Causey replied. "Observe
what, my work or my badge?" Causey was referring
to a union badge he was then wearing. Oser made
no reply at the time but later, according to Causey,
Oser said that if Causey "would pull off [his] badge
that [he] would see a lot of changes." Sechrest
testified that Oser had spoken to him about
Causey's request and Oser had expressed the
opinion that Causey did not deserve a raise.
Sechrest said that no mention was made of a union
badge. Sechrest then spoke to Causey and "in-
formed him if in the future his capability showed
hat he warranted a higher rate of pay even before
his merit time came around, [Sechrest] would take
care of it." Causey quit Respondent's employ early
in January 1967.
Oser, who is no longer with the Company, was
not called to testify. Thus, there was no direct deni-
al of Causey's quotation of Oser. Sechrest's recital
of his conversation with Oser does not supply the
deficiency On the basis of Causey's undenied and
credited testimony, the Examiner finds that
Respondent, through Foreman Oser, impliedly
threatened discriminatory treatment for union sym-
pathies and impliedly promised benefits for aban-
doning the Union
b. Employee James Todd testified concerning a
conversation he had about February 15 with
Foreman M. B. Hughes, later joined by Sechrest,
concerning Todd's request for a raise. Todd
testified that Hughes said Todd had not been with
the Company long enough to get a raise, "But now
in the meantime [Hughes] wanted to know was I a
100 percent for the Company." According to Todd,
Sechrest said that "Whatever happened on voting
day would tell the tale." Hughes asked Todd what
pay he thought he would get if the Union came in
and simply shook his head negatively when Todd
said $2 or $2.25. Todd testified further that
Sechrest had indicated that if the Union won the
election the employees' "files would be thrown in
the trash can and [they] would have to stand a
test. '
Sechrest and Hughes denied Todd's testimony.
Hughes testified that Todd asked if the Union
would affect him and Sechrest said it would not.
Sechrest further testified that he told Todd that "as
far as his education, he could grow with the com-
pany." Sechrest denied that any "tests" were men-
tioned in the conversation, and Respondent sug-
gests that the matter of "tests" might have arisen
from Sechrest's statement that Todd could further
his education at the Technical Education Center,
where tests might be given.10 Having carefully ob-
served the demeanor of the witnesses, the Trial Ex-
aminer credits Todd's testimony. Although Respon-
dent's brief states that Todd was a janitor, it ap-
pears that he had been promoted from janitorial
duties, including the cleaning of restrooms, to
mechanical maintenance , including "greasing
machines over the plant and help [ing] build
machines." Sechrest testified that he personally had
promoted Todd from janitorial status and had given
' Who Respondent maintains was a supervisory employee See discus-
sion of the discharges of Arlene Hucks and Mary Michoe, infra
" In its brief , Respondent relies on the fact that employee Harrelson was
not reprimanded when he gave two union cards to employee Arlene Hucks
in the cafeteria This fact, however, certainly does not establish that em-
ployees generally were told that the rule was not in effect as written Cf
Beverage -Air Company, 164 NLRB 1127, 1149 It is interesting to observe
that Arlene Hucks immediately turned the cards over to Foreman John
King Explaining this conduct , Hucks said "They had started watching me
Some girls that were sitting at the table near us had seen this, and I
think that they had turned it into [Supervisor] Patterson So, he and John
King and [Foreman] Tony Wilder had sLaned watching me I called
King over-John King, and gave him the cards " Hucks further testified
that later Patterson thanked her for turning the cards in Harrelson is
one of the alleged discnmmatees in this proceeding
In his brief, the General Counsel maintains that "On its face, [the no-
solicitation rule] is discriminatorily enforced , and on its face, it precludes
distribution in nonworking areas " At the hearing , counsel said "Counsel
for General Counsel has read the sign himself and I see nothing wrong with
the words on the door " The Examiner believes that such "concession" of
counsel cannot be held to estop the General Counsel from here maintain-
ing that the rule is invalidly broad on its face
10 Respondent 's brief says "During the conversation between Hughes,
Sechrest and Todd, about his raise, Mr Todd whose duties were those of a
janitor, was told that he could further his education by attending the
Technical Education Center If any examination exists, they would
exist at the Technical Education Center
AEROVOX CORPORATION OF MYRTLE BEACH, S.C
him raises before the not-inal merit increase
periods. Thus, as urged by the General Counsel,
Sechrest's statement concerning tests was in effect
a threat of possible demotion back to janitorial
status in the event of a union victory.
c. Employee Ray T Collins, Jr., testified that
around the end of November he spoke to Foreman
James Patterson. Collins' testimony was:
Well, not knowing much about unions I wanted
to find out so I went to him and asked him had
he heard anything about the union , and he said
yes, he had but he couldn't help me any, to
leave it alone, not to have anything to do with
it, and if I heard anyone talking about the
union, to let him know.
Patterson testified that he spoke to Collins about
the Union twice, both times at Collins' instigation.
Patterson admitted that he was interested "all the
time" in the union views of the employees under
him, but denied that he ever asked any of them and
specifically denied that he asked Collins to report
on that matter. Despite Patterson's denial, the Ex-
aminer finds that he violated Section 8(a)(1) by
requesting that Collins report on the union activi-
ties of other employees." General Automation
Manufacturing, Inc., 167 NLRB 502.
d. The complaint alleges that Foreman H. B.
Graham "Threatened employees with discharge
because of their union membership, activities and
sympathies." The only testimony concerning
Graham was that of employee Greer Junior Jordan
that Graham said.
that he wouldn't be too sure that the union
would help us, that he wouldn't wring the com-
pany's arm for a raise if they didn't want to
give one, and he didn't think that [the em-
ployees] should either ....
This testimony is insufficient to establish a violation
of Section 8(a)( I), Graham's statements being de-
void of threats, promises, or coercion. It will be
recommended that this allegation of the complaint
be dismissed.
e. Employee Velma Messer testified that around
April 27, employee Hazel Todd volunteered to get
a union card for Messer to sign Thereafter, Mes-
ser's foreman, Bernice Rabon, approached her and
"said `don't let any of these girls talk you into doing
anything,' because she said `it will cause you to lose
your job."' Rabon denied ever having talked to
Messer about the Union. Rabon testified that she
never discussed the Union with any of the em-
ployees under her except to answer direct questions
asked by them. However, she was evasive and una-
" Although the complaints do not specifically so allege, Patterson ad-
mitted that he had asked Arlene Hucks whether employee Harrelson had
solicited for the Union and requested that she report thereon to higher
management Since the Trial Examiner finds that Arlene Hucks was not a
supervisor (see infra), this conduct by Patterson also violated Section
8(a)(I)
1R When questioned whether any employee had asked her if the plant
would close if the Union came in , Rabon replied in the negative and then
said she had "heard it rumored but nobody has ever asked me that
1015
ble to give examples of questions she had been
asked by employees in her section . 12 Rabon
testified that even in conversations in her carpool
she made no unsolicited comments about the
Union. This seems most unlikely since the Union
was a common subject of conversation , all the
members of her carpool were , like Rabon , opposed
to the Union, and all but one of the other members
were office employees and thus outside the unit in-
volved . On the stand , Mrs. Rabon did not appear to
be an unusually taciturn person . On all the
evidence , including the demeanor of the witnesses,
the Trial Examiner credits employee Messer's
testimony and finds that Foreman Rabon
threatened loss of employment for union support.
f. Under date of 'December 5, 1966 , the day be-
fore the Union 's bargaining demand and petition to
represent the maintenance employees , Respondent
posted a notice on the company bulletin board.13
The notice , a strong statement of the Company's
antiunion position , contained the following para-
graph:
This matter is, of course , one of concern to the
Company. It is also , however , a matter of seri-
ous concern to you and our sincere belief is
that if this Union were to get in here, it would
not work to your benefit but, in the long run,
would itself operate to your serious harm.
The notice is identical to that which the Board
found violative in Greensboro Hoisery Mills, 162
NLRB 1275. See also, e.g., Serv-Air , Inc., supra,
161 NLRB 382, enfd. in pertinent part 395 F.2d
557; Kayser-Roth Hoisery Co., 158 NLRB 28,
reversed in pertinent part 388 F.2d 979 (C.A. 4).
Where , as here, the notice was followea ny nu
merous serious unfair labor practices , thus becom-
ing part of an overall pattern of coercion of and in-
terference with the employees ' organizational
rights, it is itself clearly coercive and thus violative
of Section 8(a)(I ).
g. On February 3, Respondent sent an antiunion
campaign letter to employees . That 2 - 1/2-page
letter said , inter aka:
Remember, the Union cannot guarantee that
present benefits will continue under a Union
contract. Bargaining starts from scratch! You
might think that a change will result in im-
provement , but a Union often brings many
more problems than it solves ....
*
The only weapon a Union has to attempt to
force concessions from an unwilling employer
question " She later said , however, that the employees she rode with "were
lust afraid that the plant would lose its customers, and all in this slack
time It wasn 't that the plant would close due to no union, that has
never been mentioned "
"The allegation of this notice as a violation was added to the complaint
at the beginning of the first hearing, on May 8 Although Respondent ob-
jected, claiming surprise, it is not apparent how Respondent was preju-
diced , since there is no dispute that the notice was posted and no other
evidentiary matters are involved
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is the strike. With a Union, you must be willing
to accept the serious possibility of a strike with
all its hazards. A strike is toughest on the em-
ployees and his family. Strikers cannot collect
unemployment compensation, bills pile up and
paychecks lost during a strike can never be
made up. Such loss of wages is one of the seri-
ous potential disadvantages of unionization
which you must weigh. Hard feelings, broken
friendships and even violence are also dangers
associated with unionization.
The letter proceeded to advise the employees that
economic strikers could be permanently replaced.
The Board has consistently held that statements
such as these are coercive and violative of Section
8(a)(I ). The "start from scratch" portion of the
letter clearly constituted a threat of loss of benefits
in the event of a union victory. See Surprenant Mfg.
Co., 144 NLRB 507, 517, enfd. in pertinent part
341 F.2d 756, 761 (C.A. 6). Similarly, in stating
that the Union's only weapon was a strike, which
would lead to replacement and permanent loss of
jobs, Respondent was guilty of the conduct found
violative in Little Rock Downtowner, Inc., 143
NLRB 887, 890, enfd. in part 341 F.2d 1020 (C.A.
8). And in "predicting" that a union victory would
result in less harmonious relationships within the
Company, Respondent was improperly playing
upon the fears of the employees. Graber Manufac-
turing Co., 158 NLRB 244, 249, enfd. 382 F.2d 990
(C.A. 7); Bush Hog, Inc., 161 NLRB 1575.
h. At the hearing on October 31, James Phillip
Hucks, who was allegedly discriminatorily
discharged (see discussion infra), testified that in
November 1966 his supervisor, Tony Wilder, in the
presence of another employee, asked Hucks what
he thought and felt about the Union. Thereupon
the General Counsel, stating that he had had no
prior knowledge of this incident, moved to amend
the complaint to allege that interrogation as viola-
tive of Section 8(a)(1). Over Respondent's objec-
tion, based primarily on Section 10(b) of the Act,
the Trial Examiner permitted the amendment, in-
dicating, however, that she was reserving ultimate
decision on the timeliness of the amendment.
In its supplemental brief, Respondent renews its
Section 10(b) objection to the amendment. The
General Counsel's supplemental brief does not
mention the amendment.
Without ruling on the applicability of Section
10(b), the Trial Examiner will recommend dismis-
sal of this portion of the amended complaint on the
ground that Respondent was not afforded an
adequate opportunity to investigate and defend
against this allegation.
3. The grant of benefits
The first complaint alleges that in December
1966 Respondent "granted employees economic
benefits including improved vacation plan, in-
surance plan, and free Christmas turkeys."
Although the General Counsel does not refer to this
allegation in his brief, it will here be briefly
discussed.
The undisputed evidence shows that in the past
employees periodically had ham or chicken bogs14
at the plant, with the ingredients and facilities sup-
plied by Respondent Louis Palamara, Respon-
dent's works manager, opposed holding the bogs
because, as he explained, a relatively small number
of employees were regularly saddled with the con-
siderable work involved in preparing and serving
the bogs. Accordingly, he decided that, beginning
with 1966, Respondent would give the production
and maintenance employees individual Christmas
turkeys for home consumption rather than provide
the materials for bogs at the plant. It had been
customary in the past for Respondent to give office
employees Christmas turkeys. The turkeys for 1966
Christmas were ordered considerably before the
union organizing campaign began On the un-
disputed evidence, the Trial Examiner finds that the
General Counsel has failed to establish that the gift
of Christmas turkeys to the production and main-
tenance employees in December 1966 constituted
the grant of benefits for the purpose or with the ef-
fect of dissuading the employees from supporting
the Union.
As previously stated, the maintenance employees
approached management with requests for im-
proved benefits early in November. At that time
they were told that an announcement would be
made concerning vacations the next Friday. How-
ever, on Friday Respondent said merely that infor-
mation would be forthcoming in the next issue of
the Hot Line, Respondent's house organ. An-
noyance at this delay was the immediate occasion
for the maintenance employees' decision to enlist
the aid of a union. The vacation plan was then
published in the employee handbook, You and
Your Company, which Respondent had submitted
for printing on October 27 and distributed shortly
after November 21, when the printed copies were
received from the printer. There was no evidence
of any changes having been made in the handbook
after printing was ordered. Thus, since the em-
ployees did not present their grievances and the
union campaign did not commence until sometime
in the latter half of November, the Trial Examiner
finds that the improved vacation plan had been de-
cided upon before there were any concerted or
union activities. Improved Blue Cross coverage, to
be effective December 15, 1966, was announced in
the issue of the Hot Line which appeared on an un-
specified date in November. The General Counsel,
on whom the burden of proof rested, did not show
that the improved insurance plan was decided on or
announced after the employees approached
management and then called in the Union. Ac-
" A local or regional delicacy made basically with meat and rice
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1017
cordingly , it is found that the General Counsel has
failed to establish the allegation of the violative
grant of benefits and the Trial Examiner will , there-
fore , recommend dismissal of that portion of the
complaint . Dan Howard Mfg. Co., 158 NLRB 805,
807, enfd . in part 390 F.2d 304 (C.A. 7).15
B. Alleged violations of Section 8(a)(3)
1. Maintenance unit employees
a. General observations
As previously noted, in November 1966 the
maintenance employees first approached manage-
ment with a request for improved benefits. On the
day they received what they considered an un-
satisfactory reply, employees Vickman and Gra-
inger were discharged. The record is not entirely
clear as to the status of these two men. The General
Counsel refers to them as "supervisors," and em-
ployee E. B Martin so designated them. One of the
employee witnesses, however, called them "work-
ing foremen." The evidence generally establishes
that, whatever their status, they made common
cause with the rank-and-file employees in their ef-
fort to secure improved benefits. One employee
testified that, to the best of his recollection,
Vickman first suggested that they call on a union.
These discharges disturbed the maintenance em-
ployees and substantially contributed to the deci-
sion to enlist the aid of a union. At least one union
-meeting was held at Vickman's home.
Among the maintenance employees at the time in
question was M. B. Hughes, a machinist. Hughes
was particularly upset about the discharge of
Vickman and Grainger. He suggested, and volun-
teered to participate in, providing financial
assistance to the two men until they secured new
employment. According to credited employee wit-
nesses, Hughes also offered the use of his automo-
bile for securing the assistance of a union organizer.
Hughes had attended the meeting at which it was
decided to enlist the aid of a union and union
meetings at Vickman's home and at a restaurant.
However, Hughes denied that he had been active in
the organizational activity He said he had left the
second meeting early, after expressing his opposi-
tion. But he reluctantly admitted that he had signed
a union card. Even if one credited his disavowal of
the commitment to the union cause, he obviously
was in a position to know, and did know, which em-
ployees were union activists.
Sometime in December 1966, after the main-
tenance employees had been organized, M. B
Hughes was made a foreman. His knowledge of the
union campaign thus was available to management,
which made clear its opposition to the Union and _
frequently discussed the matter at meetings of su-
pervisory personnel. In a list of "Do's and Dont's
for Supervisors" Respondent said: " It is not an un-
fair labor practice to listen" when employees volun-
teer information "about confidential Union mat-
ters, meetings , etc." That supervisory personnel
were expected to share their knowledge with
management is attested to by the fact that Foreman
Patterson asked employee Arlene Hucks about
another employee's union solicitation and
requested that Hucks report thereon to "higher
men" because she was an "assistant supervisor."16
As a witness, Hughes, who did not appear to be a
reticent person, made clear his opposition to the
Union. On all the evidence, including Hughes'
demeanor as a witness , the Examiner discredits his
testimony that he never discussed with management
the employee and union meetings he had attended
before becoming a foreman.'' The Trial Examiner
finds that Foreman Hughes' knowledge of the union
sympathies and activities of particular maintenance
employees was imparted to other supervisory and
management personnel and was in Respondent's
possession when it took the personnel actions
hereinafter discussed.
The evidence in the present record reflects close
surveillance of and a spate of adverse employee re-
ports concerning the alleged discriminatees. Plant
Engineer Robert L. Sechrest, in overall charge of
maintenance and related work, sought to establish
that the disciplinary actions here involved were
fully in accordance with Respondent's established
past practices. His attempts to do so, however, were
unsuccessful. On cross-examination Sechrest con-
ceded that the November discharges of Vickman
and Grainger were the first discharges for cause in
the year 1966 that he could name . Although he had
previously said that he thought there had been
about four discharges for cause from January
through April 1966, he was unable to name any of
the employees discharged and Respondent never
did present any further evidence in this connection.
Sechrest further was unable to name any other em-
ployees who had been reprimanded or suspended
during the period January through October 1966.
He then testified as follows on cross-examination by
counsel for the Union:
0. You didn't have any trouble as far as
discipline was concerned as far as suspension,
as far as you know, from January to November
1966, did you?
A. In that particular phase of it, we did not
put out our company policy manual and inform
the people specifically what we expected on
them, what we expected as managers , them to
do for their hours of working. It was specified
what each employee and everything that they
are supposed to do is taken care of in the pol-
is Additional alleged violation of Section 8(a)( I ), involving employees
Mary Mishoe and Arlene Hucks, will be discussed below in conjunction
with the alleged violations of Section 8(a)(3) arising from their layoff
18 Arlene Hucks' status under the Act is discussed below
it Hughes incredibly testified that he had never discussed the Union with
anyone-not even with his wife
101 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
icy manual. After it was given to them, they
read it, they signed for it that they were
familiar with it, we expected them to follow
our department and company policies.
Sechrest then said that there had been one suspen-
sion in the past, but he could not remember who
had been suspended And immediately thereafter
he acknowledged that the handbook distributed
around the end of November was "simply a com-
pilation of rules and regulations that have been in
effect for a long period of time." On all the
evidence, the Trial Examiner finds, in accordance
with the General Counsel's contention, that in
November 1966, starting with the discharge of
Vickman and Grainger, the first general expression
of employee dissatisfaction, and the ensuing union
organizational campaign, Respondent initiated a
program of increased disciplinary action.18
b Specific alleged discriminatory actions
(I) The discharge of E. B. Martin
E. B. Martin was discharged on December 21,
1966, after almost 7 years' service, which, so far as
appears, had been completely satisfactory. The em-
ployee report of his discharge states the following
reason:
The Company has evidence that you openly
solicitated on behalf of a Union in the produc-
tion area of this Company and that you handed
out Union cards and asked that they be signed.
At the time that this was done, the employees
that you approached were engaged in produc-
tion in the normal course of their employment.
While an employee has a right to engage in
Union activities during their own period of
time, an employee does not have the right to
interfere with production by solicitating for
Union membership. The Company has a firm
policy, regarding this, and you have violated
this policy and, therefore, your services are
now hereby terminated for this conduct.
Employee Mary Edna Lilly, called by Respon-
dent, testified that on December 12 Martin left a
machine on which he was welding and walked
about 12 or 15 feet to the machine at which Lilly
was working. At the time employee Spivey, who,
like Lilly, was a production worker, was checking
the speed of Lilly's machine. According to Lilly,
Martin placed several union cards on the machine
and talked to the employees, principally Spivey, for
about 5 minutes. However, Lilly also testified that
Martin "didn't say too much then but he came back
later asked us if we had signed the cards." He then
told them "how good the Union was and what it
would bring" the employees. During this conversa-
tion Lilly continued to operate her machine and ap-
parently Spivey continued to check its speed. There
was no evidence of any disruption in production.
According to Lilly, Spivey took the cards which
Martin had laid on the machine.
Martin testified that while he was working on a
stamping machine Lilly noticed his union badge
and asked him what the letters "IBEW" stood for.
He replied: "I've been everywhere." After they
both laughed, she repeated her question and he told
her the name of the Union. He testified that the
conversation took just a few seconds, during which
there was no suspension of work. He denied that he
left any union cards on the machine.
At the time in question there was no organiza-
tional campaign among the production workers, a
fact substantiated by several witnesses, including
Foreman Hughes, who testified that at the union
meeting in December'9 the subject of discussion
was "Organizing the maintenance and machine
shop and janitors."
Questioned about E. B. Martin's discharge, Louis
M. Palamara, Respondent's works manager,
testified as follows:
A. As the paper states, in my terminology
and my language, he was discharged for solicit-
ing for the union on company time, company
property, and interfering with production, nor-
mal production, normal production habits of
employees.
Q. . . . what was he actually doing?
A. He was soliciting for the union. He was
trying to get union cards signed.
Q. By whom?
* * * * *
A. By Edna Lilly.
Q. Was this the only person?
A. She mentioned another individual. My
knowledge of the case was that the contact he
made, the one that I was interested in, was
Edna Lilly. It only takes one.
... he was in violation of an accepted law.
He was soliciting for a union and for this
reason he was discharged.
Thus, although the employee report stated that
Martin's activities had interfered with production,
Palamara apparently made no investigation to
determine whether that was the fact and there was
no evidence to that effect. See Serv-Air, Inc., supra,
161 NLRB 382. Although Lilly said that Martin
had spoken mainly to employee Spivey and that
Spivey had taken the union cards, Palamara ap-
parently did not speak to her and she was not called
to testify. And Palamara did not even question
Martin. See Textile Workers Union of America (J. P.
Stevens & Co., Inc.) v. N.L.R.B., 388 F.2d 896,
903 (C.A. 2).' The wording of Palamara's testi-
" On August 10 Edgar testified that approximately 30 employees, 23 or
24 of them being factory workers, had been discharged in 1967 No com-
parable figure was provided for prior years
'" Hughes disclaimed any ability to give even an approximate date for the
meeting in question However, other evidence clearly places it in
December
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1019
mony itself strongly suggests that he was simply
looking for a pretext to discharge Martin.20
While Respondent 's rule against solicitation on
working time was presumptively valid (see discus-
sion supra ), and violation thereof might constitute
valid ground for discharge , the Examiner is satisfied
that Respondent simply seized upon Martin 's rela-
tively minor dereliction as a pretext for ridding it-
self of a union leader . Other employees were not so
harshly dealt with For example , employee J. B.
Johnson , a production employee ( whose discharge
is discussed below ), testified to having openly sol-
icited employees to sign union cards during work-
ing time in the presence of both his foreman and his
supervisor . Although his foreman denied
knowledge of this solicitation , the Trial Examiner
credits Johnson 's testimony. Johnson was not
discharged or even personally reprimanded at that
time.
On all the evidence, the Trial Examiner con-
cludes that the reason for Martin 's discharge was
not the fact of soliciting on working time but rather
the object of the solicitations . In short , Martin was
discriminatorily discharged for his union activities.
Taylor Instrument Companies, 165 NLRB 843.
(2) The discharge of Munick Carl Hucks
Carl Hucks, 21 who had worked for Respondent
about 4 years, was discharged on January 3 al-
legedly for failing to report for work on Saturday,
December 31, after having been given a written
reprimand on December 22 for absenteeism. Ap-
parently Respondent had found his work satisfac-
tory up to that time, since he had been reemployed
around September 1, after having quit about a
month earlier.
From the inception of the organizing campaign,
around the end of November or the beginning of
December, Hucks was an active union proponent
and wore a union organizing committee badge
On December 29 Respondent posted on the com-
pany bulletin board a notice that Saturday,
December 31, 1966, would be a scheduled normal
working day for the maintenance department and
that Monday, January 2, 1967, would not be a
workday. Hucks did not report for work on Satur-
day, December 3 1, and did not call in or request to
be excused . Presumptively , therefore, disciplinary
action would appear proper. However , the evidence
leads the Examiner to conclude that Respondent
"doth protest too much."
Although the scheduling of work on December
3 1 was clearly directed to the special circumstances
of the New Year's holiday , Respondent tied it into
the Company' s practices as to work on Saturdays
generally. There is no dispute that, at least until
September 9, work on Saturdays was voluntary.
Every Friday the foremen asked each employee if
Y0 The pattern is similar to that testified to by Arlene Hucks, who quoted
Foreman Patterson as having said that "there was nothing he could do with
]employee Harrelson] unless he caught him soliciting for the Union " Har-
ne wanted to work the , next day . Sechrest testified
that commencing with September 9, Saturday work
for the maintenance employees was made non-
voluntary , with Respondent simply posting on the
bulletin board each Friday a list of the employees
who were expected to report to work the next day.
No general announcement was made of this change
either orally or in writing on the bulletin board or
in the company newspaper. No explanation was
given for the absence of a general announcement of
such a significant change in the Company 's rules.
Respondent introduced into evidence schedules
which had been posted on the bulletin board each
Friday between September 9 and December 16 list-
ing the names of maintenance employees scheduled
to work the next day . However , the posting of these
names does not in itself establish Respondent's con-
tention that Saturday work was changed from
voluntary to compulsory.
Carl Hucks testitiea Lnat the foremen came
around on Fridays with lists of employees . He said
the foreman "always gave us a choice ." After ask-
ing the employees , the foremen made notations on
the lists to indicate which employees had agreed to
work the next day. The lists posted on the bulletin
board were compiled from these polls . Hucks then
stated that he recalled having agreed to work one
Saturday in December ( which he did ) and added:
`the other Saturdays I either told them no or either
no one came around to ask me ." Employee James
King corroborated Hucks' understanding of
Respondent 's manner of scheduling maintenance
employees for Saturdays . King said:
Well, when they first started , they just come
around and asked you if you wanted to work
on Saturdays , and then later on they would
come around ; they had a slip with all the wor-
kers names on it , and they asked if you wanted
to work ; and if you did, he would write the
names down ; and if they didn 't, he would
check it off so you could tell whether they
were going to be there or not on Saturdays.
Sechrest testified that it was his foremen, not he
personally , who had advised the employees that
Saturday was now mandatory unless an employee
obtained specific permission not to be present for a
reason deemed justifiable by management. Sechrest
said there had been a transitional or "phase-in"
period after September 9 in which the foremen
continued to talk to individuals and told them that
henceforth Saturday schedules would merely be
posted . He did not know how long this transitional
period lasted . Only one of the three foremen under
Sechrest testified and Respondent did not question
him on this matter. On cross-examination this
foreman, Hughes, was asked if he had been in-
structed not to ask the employees if they wanted to
work on Saturday . He replied : " It was posted on
the board ." But, as previously noted , no notice ever
elson 's subsequent discharge is discussed below
' Carl Hucks, Phillip Hucks , and Arlene Hucks, all alleged dis-
cnmmatees , are not related to one another
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was posted announcing the change from voluntary
to mandatory Saturday work. Thus Sechrest's es-
sentially hearsay testimony that the foremen had so
advised the employees remained uncorroborated.
There was no direct nonhearsay evidence that any
employee had been told he was requuired to work
Saturdays when scheduled without his consent.
Employee James King did not work Saturday,
December 3 1, but received no reprimand or other
discipline therefor.22 On January 9 he was orally
reprimanded for being absent on Saturday, January
7, and on January 20 he was given a written repri-
mand for being absent on January 7 and 14. The
treatment afforded him establishes that absence on
December 31 or other Saturdays did not automati-
cally require discharge.23
Hucks' prior reprimand, dated December 22,
reads as follows:
A review of your absentee record indicates
that you have been absent quite excessively
during the month of December. To be exact,
you were absent on 12-10-66.... 12-13-66,
anu IG-i/-bo. Altnougn 12-lu-66 and
12-17-66 were Saturdays, you were scheduled
to work and also you committed yourself by re-
porting that you would be in for work.
The Machine Shop cannot run effectively or
efficiently with this kind of absenteeism. You
are, hereby, cautioned to improve this record
and that any more absenteeism during the next
three months will be just cause for dismissal.
The statement that Hucks had "committed" him-
self by "reporting that [he] would be in for work"
indicates that somebody had asked him, thus refut-
ing Respondent's present contention that em-
ployees were scheduled for Saturday work without
prior consultation. Sechrest testified that he had
been told by Hughes that Hucks had "committed"
himself to work, but Hughes did not testify con-
cerning this matter. One cannot help wondering
why, when Hucks failed to report for work on
December 10, he was not reprimanded and specifi-
cally informed that Saturday work was no longer on
a voluntary basis if that was the fact. The obvious
explanation is that Respondent was building a
record against Hucks 24
On all the evidence, the Trial Examiner finds that
Munick Carl Hucks was discriminatorily discharged
in violation of Section 8(a)(3) of the Act.
(3) The suspension of E. L. Martin25
On February 28, 1967, E. L. Martin, a carpenter,
was suspended for 3 days without pay.
Martin was a union proponent from the
beginning of the campaign. He wore a union but-
ton, attended employee and union meetings, and
solicited union cards. Like other alleged dis-
criminatees, Martin had attended union meetings
with M. B. Hughes.
The employee report imposing the suspension
gives the following three separately numbered
reasons: "Being away from the job or out of work
area without permission of the supervisor"; "Ineffi-
ciency or lack of ability"; and "Wasting time, such
as loafing, excess visiting, wandering way from
work station." Thereafter appears the following:
"Failure to observe rudimentary company rules."
Martin gave the following account of tTie crrcum
stances leading up to the suspension: About 11:30
a.m. one day26 he went out of the shop to get a
piece of tube out of his truck. Outside the shop, he
saw Jimmy Lawrence Roberts, who had previously
worked as Martin's helper. Roberts was on sick
leave, having severed a finger in an accident at the
plant. Martin stopped, asked Roberts how he was,
mentioned the fact that Roberts had left some tools
at the plant, and asked if he wanted Martin to get
him the tools. Martin said the conversation took
about a minute. Martin then went back into the
plant and got Roberts' band saw. After giving
Roberts the saw, Martin got the tube from his truck
and then returned to the plant to see employee Vir-
gil Roberts about another order.
While he and J. L. Roberts were talking,
Foreman Hughes came to the back door of the
plant, looked out, and then went back in. Sechrest
also walked up, coming through the parking lot.
Later that day Martin was called into Sechrest's of-
fice and given an oral warning. According to Mar-
tin, Sechrest said Martin had been "out of line talk-
ing to somebody [he] had no business talking to."
When Martin explained the matter, Sechrest said,
"That doesn't make any difference." A few days
later Martin was called to the office of Respon-
dent's industrial relations manager, Robert Edgar.
With Edgar and Foreman Singleton present,
Sechrest told Martin he had been "out of line" and
was therefore being suspended.
Jimmy Lawrence Roberts corroborated Martin's
testimony concerning the conversation outside the
22 While King was apparently prounion, there is no evidence that he en-
gaged in any union activity other than wearing a union pin
' Employee Glenn,B Causey also failed to report to work on ;December
31, 1966, but did not receive even an oral reprimand Respondent main-
tains that it would have been a waste of time to give such a reprimand, since
Causey had already given notice that he was quitting a week or so later
One might well wonder why such a reprimand would not be advisable in the
event Causey were to seek reemployment, if the dereliction were con
sidered serious enough to warrant discharge In this connection it may be
noted that the employee report on the discharge of J B Johnson ( infra)
contains a large note reading " Do not rehire "
21 On November 25 Hucks had been given a written reprimand for allow-
ing his brother to come into the plant at night without having secured per-
mission Respondent does not rely on this reprimand as justifying the even-
tual discharge Respondent contends , on the other hand , that this repri-
mand serves to establish the absence of antiunion motivation on Respon-
dent's part, since it was given before the union campaign commenced The
Trial Examiner rejects this argument It might just as plausibly be argued
that Respondent 's failure to take more drastic disciplinary action for the
November 25 misconduct highlights the severity of the subsequent
discharge In any event , the reprimand was apparently given after the marn-
tenance employees had approached management with their complaints and
probably after they had decided to call in a union
25 E L Martin is E B Martin 's father
28 Martin's recollection of dates was vague This does not, however, af-
fect his credibility
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1021
plant and the appearance of Hughes and Sechrest
at that time . Sechrest testified that when he asked
Martin about the matter Martin said that he did not
recall with whom he had been speaking . Sechrest's
memory , however , was admittedly unclear as to
details. He said he thought he had heard of the in-
cident from Foreman George Caldwell, who had
seen Martin talking outside the plant . Sechrest
testified affirmatively, however, that Martin "was
out on the sidewalk with someone other than
Aerovox employees ." This statement does not jibe
with Martin 's testimony , as corroborated by
Roberts . Neither Caldwell27 nor Hughes was
questioned concerning the E . L. Martin affair.
In its brief, Respondent argues that the vice of
Martin 's conduct was not that he was outside
speaking to a nonemployee , but rather that "[he]
was not performing work while standing out on the
sidewalk engaging in conversation with persons not
connected with his work , whomsoever [sic] they
might be." But Respondent adduced no evidence
concerning the amount of working time Martin
spent in the conversation . So far as appears,
Respondent made no investigation of this matter.
Respondent emphasizes a written reprimand
which Martin had been given in December for
"exiting by means of the maintenance doors which
is in violation of company policy." This alleged mis-
conduct is unrelated to the grounds on which Martin
was purportedly suspended and was not mentioned
in the employee report imposing the suspension.28
On all the evidence , the Trial Examiner finds that
Martin 's conversation outside the plant shortly be-
fore February 28 was simply used by Respondent as
a pretext for disciplinary action , the true reason for
which was his union sympathies and activities.29
(4) The discharge of John Wayne Altman
Altman was hired on October 10, 1966, at $1.25
per hour as a trainee to operate a DSMR machine
on the first shift. On October 20, he was assigned to
cleanup duty on the third shift (at $1.28 per hour,
including a shift differential). According to an em-
ployee report, this transfer was made because his
work as a machine operator had been unsatisfac-
tory. The report said: "If his performance as clean
up is not satisfactory, his services will be termi-
nated." An employee report of November 13 stated
that Altman had been "of his lost motion, and his
performance is not satisfactory at all." The report
continued: "But will try another week after he was
cautioned. And his performance will be observed
closely." Sometime around November 25, he asked
his supervisor, Gladys Jordan, for a raise. Accord-
ing to Altman, Jordan at that time expressed plea-
sure with his work and on November 28 his wage
rate was increased to $1.30. An employee report of
that date said that Altman had been closely ob-
served and his work had improved.
He was discharged on December 15. A detailed
employee report of that date said: "Since his Raise
in Pay His job performance had Declined." It then
recited derelictions on December 6, 8, 9, 13, and
14, in such detail as to show that Altman had been
kept under constant surveillance. Palamara
testified- "After discussing some of the reprimands
[Altman] had received with Mr. Caldwell, I in-
structed Mr. Caldwell to maintain normal surveil-
lance. This- is customary for all our employees."
Caldwell, however, denied that he had ever been
instructed to watch Altman's work. Caldwell ex-
plained the detail of his observation by stating that,
as a sergeant in the Army, he had acquired the
practice of keeping a log of "anything that happens
that I think that might something come up in the fu-
ture." His log contains unfavorable notes but never
complimentary observations. It was not produced
or offered in evidence.
Altman testified that he had attended three of
four union meetings and on December 15, the day
he was discharged, he wore a union badge for the
first time. Caldwell admitted having seen the union
badge that day. But Caldwell also testified that he
decided to discharge Altman on December 13 but,
at the request of the payroll department, postponed
the notice until payday, December 15.
Respondent's evidence shows that complaint was
made of Altman's work before the union campaign
began Though he apparently made his best effort,
with some improvement for awhile, he generally
remained an inefficient worker. That he was given a
5-cent-per-hour raise some 6 weeks after being
hired is not in itself sufficient to establish that he
was not thereafter discharged for inefficiency. And
there is no other affirmative evidence to support
such a conclusion.
While there are some deficiencies in Respon-
dent's evidence, the Trial Examiner finds that the
General Counsel has failed to establish by a pre-
ponderance of the evidence that Altman's
discharge was discriminatorily motivated. Ac-
cordingly, it will be recommended that the com-
plaint be dismissed insofar as it alleges Altman's
discharge as violative of Section 8(a)(3).
(5) The discharge of Julius Virgil Roberts
Roberts, whose job was to set up machines for
prescribed operations, was an active and avowed
union proponent. He testified at the representation
proceeding involving the maintenance unit and was
St Caldwell keeps a log of employee misconduct which he feels might be
the subject of action in the future (See discussion of the Altman discharge,
infra ) So far as appears , he did not there record E L Martin's alleged
unauthorized conversation outside the plant
$1 There is no cviden.,.o mat Martin had previously been reprimanded for
"wasting time " Respondent 's brief thus conveys an erroneous impression
of the record when it says "IMartm 'sl prior verbal warnings and written
warnings had made no impact upon him and a reasonable , lawful action by
Respondent was to use some method of getting its message across that his
paid time was Company time and Company rules were to be obeyed "
29 It appears that E L Martin was later discharged but the record con-
tains no evidence concerning the circumstances of the discharge
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union observer at that election. After the main-
tenance unit election he actively solicited union
memberships among the production workers, whom
he visited at home on the free time afforded him
because the Company was working short hours.
Respondent does not deny knowledge of Roberts'
union sympathies and activities.
After having worked for Respondent for 5 years,
Robert was discharged on May 430 purportedly for
having disregarded instructions as to the method of
adjusting certain equipment.
On May 4 Roberts admittedly used a bent piece
of lead solder in adjusting the positioning wheel on
a machine .31 At the time he was adjusting a
machine for the production of parts for IBM. It is
undenied that this production requires especially
close adjustment of the wheel.32 Roberts' testimony,
essentially uncontradicted, was that he was the only
person then employed at the plant who was able to
set a machine for IBM production. Further, at the
time in question, upon instructions, he was setting
the job up on a machine which had never previ-
ously been used for this type of production.
Roberts, whose demeanor impressed the Trial
Examiner very favorably, testified that in setting the
positioning wheel he loosened the Allen screw
(which held the wheel tight on the shaft) to the
"snug" position, placed the rounded end of the bent
solder bar against a tooth on the circumference of
the wheel, and then quickly tapped or "bumped"
the other end of the solder bar with his hand, thus
turning the wheel slightly. He credibly testified,
with corroboration, that it had been a longstanding
practice for him and others to employ this method
of adjusting positioning wheels, using either a
solder bar or a piece of brass. Both of these metals
so used are softer than the aluminum toothed edges
of the positioning wheels. He explained that the
necessary adjustments of wheels are often as slight
as one-sixty-fourth of an inch and it is impossible to
make such fine adjustments by loosening the Allen
screw completely and then moving the wheel with
bare hands. Roberts further testified that when he
was orally reprimanded on May 4, he suggested
that other tools be provided and was informed that
new wrenches were then on order.33 Sechrest
testified that he had helped set up DSMR machines
and "may well have" used a bar of brass to tap
something into position, but denied that he had
ever used a bar of solder for that purpose. He later
testified that he had used a piece of brass to "adjust
on the DSMR" but had "never used a piece of
brass to adjust a positioning wheel." He gave no
further explanation. Roberts testified that, in con-
nection- with the incident for which Roberts was
discharged, Bellamy said that Roberts had acted
properly. While Bellamy denied this, the Trial Ex-
aminer credits Roberts.
According to Respondent, sometime in April in-
structions were issued that no objects other than
Allen wrenches were to be used in adjusting the
machines. However, much of Respondent's own
evidence corroborates Roberts' testimony that the
actual instructions were "not to use a hammer or
hard metal in adjusting the wheels on the
machine." The employee report concerning
Roberts' discharge tends to support this version of
the instructions, reciting:
On or about 4/12/67 our 1st shift set up
man, supervisor and section foremen were
called together by the line foreman and shown
an expensive DSMR Part which had to be
replaced due to abuse in adjusting forceably
adjusting. [Beating with a mallet or
equivalent ] They were told that under no cir-
cumstances would this practice be tolerated.
Section Foreman John D. Bellamy testified that
the immediate occasion for the issuance of the in-
structions was damage to a positioning wheel so
serious that it could not be repaired, but had to be
replaced. 34 Because of that wheel, Sechrest, in
charge of maintenance , spoke to Line Foreman
Glen Rockett, who thereupon called a meeting with
Bellamy, Supervisor Kenneth Johnson, and
Roberts, where the instructions were given orally.
Sechrest, however, testified that he believed the
particular damaged wheel which led to the instruc-
tion had been repaired - "This particular wheel I
believe was cleaned up." Rockett, who had been
called in by Sechrest and shown the wheel, did not
testify. Bellamy further testified that theretofore
wheels had had normal maintenance repairs at in-
tervals of 6 months to a year but they had never
had repairs other than for normal wearing of the
bushings, springs, pins, etc. Sechrest, however, said
that the Company had been complaining about
damaged wheels for the "the better part of a year."
He added that they might have had such trouble
even before then but "it wasn't important enough
at that time to really raise an issue about it " When
asked on direct examination concerning the
frequency of repairs or replacements before April
1967, Sechrest said. "it would be at a random ac-
cording to how badly they were abused, but I would
say with a frequency of every three months at
least." He then testified that, "[with] ordinary
maintenance" these wheels, other than the
bearings, should not need repair for "nine or ten
months." Whether Bellamy or Sechrest was correct
as to when damage to the positioning wheels began
it is clear that the instructions which Roberts al-
legedly disobeyed were not given until April 1967.
90 His discharge was just 5 days before he testified briefly in this proceed-
ing in connection with E L Martin's suspension Roberts ' discharge was
litigated in the August hearing
" The machine is used for soldering wire leads to small ceramic discs
The function of the positioning wheel is to place the wires in proper rela-
tionship to the discs
" In the IBM production the function of the positioning wheel is
somewhat different from that in other production
" Apparently they have since been provided
" The evidence was that a replacement wheel costs $112
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1023
Roberts was summarily discharged without any in-
vestigation by Respondent as to the condition of
the wheel. There is not a scintilla of evidence that
Roberts had damaged the wheel in any manner.
Further, Roberts had not "beat" upon the wheel
with a "mallet" or any "hard" object.
The day before he was discharged Roberts was
recognized for having submitted a suggestion for
improvement of the Company's operations.
Respondent concedes that the suggestion was a
good one and has been adopted.
The first employee report concerning Roberts
which he knew about was in October 1966, recom-
mending him for a wage increase. Between that
time and the date of his discharge three adverse re-
ports had been put in his file but only one of them
had been shown to him The earliest of the three,
dated December 9, 1966, states that Roberts had
been cautioned for failure to follow instructions,
"including an instruction to "[K]eep lost motion to
a minimum " (based on complaints that he visited
the maintenance department too often and stayed
too long) and unspecified violations of instructions
concerning assignment of work to mechanics. The
next employee report, dated January 5, 1967, states
that Roberts' "attitude about doing his job is very
poor," with the added note: "One thing in particu-
lar referred to in the above is his negative stand on
instructions from section foremen in this area." No
specifics were provided in the report or in
testimony at the hearing. The third report, dated
March 21, was shown to Roberts when made. It
concerned his having asked why one of the em-
ployees in his section was at the foreman's desk.
Roberts testified that, seeing the machine operator
at the foreman's desk, Roberts wanted to know if
there was any problem with the operation of the
machine, which he had set up. The employee report
of this incident reads.
Employee has been advised of his error in
assuming he should be concerned with the
judgements or decisions of the foreman in
charge. On 3/21/67 he went to the foreman &
asked why one of his operators was "chewed
out." He was told that this is confidential infor-
mation, that the operators of the machines
were the responsibility of the supervisor &
foreman, not his, and that his job is set up or
other as instructed'by those in charge.
It was also pointed out, that this was not the
first insubordination on his part & that it will
not be tolerated in the future without action
being taken. He was reminded that his attitude
has been less than desirable in the recent past.
Respondent does not suggest that Roberts was
rude, hostile, or otherwise offensive in manner. To
the Trial Examiner it hardly appears to constitute
"insubordination" warranting a formal reprimand
for Roberts to be concerned that a fellow employee
not be unfairly dealt with, particularly since
Roberts had reason to believe that there might be
some problem with a machine which he had set up
and which was then not in operation.35 The repri-
mand thus appears to be a bit of "record-building"
to justify a later discharge.
On all the evidence, the Trial Examiner finds that
Roberts' use of a solder bar in adjusting the posi-
tioning wheel while setting up a DSMR machine to
run IBM production was simply a pretext which
Respondent seized on to justify discharging him,
the real reason for the discharge being his union ac-
tivities.
2. Production employees
a. The discharge of George Lawrence Harrelson
Harrelson, a disc paint machine operator working
under Janice Smart as supervisor and James Patter-
son as line foreman, was discharged on May 5,
1967. Harrelson was an active union sympathizer
from the beginning of the organizing campaign
among the production workers in January. He was
on the union organizing committee, distributed
handbills and literature in the company cafeteria,
spoke to employees, and solicited union authoriza-
tion cards. He started to wear a union organizing
committee badge about the middle of January and
wore it an the time until he was discharged. Patter-
son conceded that he had known that Harrelson
"associated with union people ever since
December," although Patterson said he could not
recall when Harrelson had started to wear a union
badge.
To support its contention that Harrelson was
discharged for cause, Respondent introduced a se-
ries of employee reports and evidence concerning
oral warnings . The earliest employee report, dated
March 30, 1967, reads:
Employee had been warned about being out of
section without permission.
He has been going to other sections and talking
to machine operators.
According to Harrelson, at that time production
was slack in his section . Accordingly, he was as-
signed to work in the wax room. When he caught
up with his work, he went to Assistant Foreman
King and asked for work to do. King told him to
help Supervisor Steve Martin make stamps for the
TSC machines and to help Billy Lewis strip car-
riages. With Harrelson thus obeying King's instruc-
tion, Patterson reprimanded him for being away
from the wax room. Neither King, Martin, not
'S in the incident resulting in his discharge , Roberts had shown a similar
concern for fairness When Foreman Bellamy verbally reprimanded the
machine operator, Brown, for having used a solder bar in setting up the
DSMR machine, Roberts interceded and volunteered the information that
it was he who set up the machine with the use of a solder bar
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lewis was called to testify. Foreman Patterson, tes-
tifying for Respondent, said that "on several occa-
sions throughout the plant" he had seen Harrelson
"going from section to section, from machine to
machine talking to the operators." Patterson added
that he had "checked" and Harrelson "had no per-
mission to be out of the section ." He gave no
details as to his "checking." According to Harrel-
son, when he was reprimanded he was in his section
but not in the wax room, where his basic assign-
ment was.
Another employee report, dated April 27, reads:
Employee has been warned about his quality of
work. He has also been warned about his at-
titude and conduct. He had to be told to move
his work three (3) times from the oven before
going to move the work. The supervisor has
also had to keep calling him to keep him
awake. Improvement will be shown or dismis-
sal action taken.
According to Harrelson , he was sitting sorting work
when fellow employee Paul Sanders came to him
and asked for the return of a spring Harrelson had
earlier borrowed. Harrelson was just about to
answer Sanders when Supervisor Janice Smart ap-
proached and said: "Larry, you mean you're not
asleep now?" She walked away and later returned
with a written reprimand. Sanders corroborated
Harrelson's testimony. Smart did not testify. Patter-
son's essentially hearsay testimony was that "the su-
pervisor had been to him, telling him he was going
to have to stay awake more, he was going to have
to pay more attention to what he was doing."
Harrelson testified that about 2 a.m. on April
28 36 while on his way to the cafeteria during his
break period, he saw a few women reading material
on the bulletin board. The material apparently con-
sisted of questions raised by Respondent concern-
ing the Union. The women put the questions to
Harrelson. Being unable to answer all of them, he
proceeded to copy them so that he could secure the
answers from the Union. While he was so engaged,
Patterson came by and said, in effect, that the
Union was no good. It was a few hours later, about
5:30 a.m., that Patterson gave him a written repri-
mand for allegedly sleeping on the job. According
to Harrelson, at that time the reprimand referred
only to sleeping on the job and did not contain any
reference to the quality of his work.37 Patterson
corroborated the testimony of some kind of en-
counter at the bulletin board, but his version dif-
fered from Harrelson's. According to Patterson,
Harrelson was standing at the bulletin board with
some women when Patterson walked by. Patterson
testified that-
1° This was during the third shift of the April 27 workday Thus, although
the employee report is dated April 27, it was issued after the episode here
recited
37 Employee James Phillip Hucks indicated that he had heard of em-
ployee reports having been altered , but he had no personal knowledge
thereof See discussion of the Hucks matter infra
11 There is an added note reading " Employee stated that the scrap he
... the women started making some comments
to me about the union .... So this I enjoyed. I
started making some back with them. They
asked me .... And in the meantime Larry
turned around and said something to me, and I
asked him, I said, "Larry, did you ask a.
question." And he turned around and left.
According to Patterson, it was around 7 or 7:30
a.m. that he gave Harrelson the reprimand. Thus,
despite minor differences in their testimony, Har-
relson and Patterson agree that the reprimand of
April 27 was given within a matter of a few hours
after they had spoken about the Union with some
female employees at the company bulletin board.
The employee report of May 4 announcing Har-
relson's discharge reads:
... Employee has been warned orally on
several occasions about his quality of work and
one written warning. He has also been warned
about going to other sections without permis-
sion and following instructions.
On the morning of May 5 he ran an order of
work that had an excessive amount of scrap.
This scrap was paint smears, shorts and blanks
Due to no improvement shown we feel that
dismissal action should be taken.38
When questioned on direct examination about
the events leading to the employee report of May 4,
Patterson said:
Well, after the write up, it still wasn't doing
no good. I had talked to him orally. I walked
by him and woke him up, or caught him
nodding-I don't say I woke him up, and told
him to go wash his face a few times, and I had
seen him sitting around, and I would see him
sorting work, and I would go to the supervisor
and ask him why he was sorting work, and she,
said "We found too many bad ones in it, too
much scrap in his work."
So on this night, this last night, I found his
tray of work and it was an excessive amount of
scrap, and I didn't have no alternative but to
call him in and told him that I had not seen no
improvement, and I let him go.
General Foreman E. E. Carter testified that he
asked Harrelson what he had done with the scrap
and Harrelson said he had put it in the trash can.
Although Carter said he wanted to see the scrap
"to see just how bad this work was," no attempt
was made to retrieve it. The evidence tends to
establish that Harrelson probably had put the scrap
in the scrap container, which was in the form com-
monly referred to as a trash barrel .31
had picked out he threw in trash "
1' There was some evidence to the effect that , at least before the painted
discs were fired , the silver paint with which Harrelson was working could
be washed off and thus had some salvage value After firing, silverpainted
discs may have had some value as scrap, but Respondent adduced no
specific reliable evidence on this score
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1025
Harrelson also testified that on May 4 , the morn-
ing before he was discharged , he had handed out
union handbills in the cafeteria at breaktime and
outside the plant before he went home after finish-
ing work. He said that Personnel Director Edgar
and four other supervisory officials had been
present for the approxmately 15 minutes that he
passed out handbills in the road . About 2 hours
later he was called at home and asked to return to
the plant and report to the personnel office. When
he did so, he was given the discharge notice.
Harrelson testified, and Patterson concurred, that
at the time of his discharge Harrelson was training
on a machine he had not previously operated.
Respondent did not offer any production records or
other evidence tending to support its conclusionary
statements that Harrelson created an excessive
amount of defective work
On all the evidence, including the demeanor of
the witnesses, the Trial Examiner finds that Harrel-
son was discharged because of his union activities.
b. The discharge of J. B. Johnson
J. B. Johnson was discharged on April 6, after
having worked for Respondent about 5 years.
He testified that he had been openly active for
the Union since around January or February, when
he tried to have an organizing campaign initiated
among the production workers. He solicited union
cards "from start to finish, on or off the job." He
said that on one occasion, during production time,
he went from machine to machine, operating each
machine while the operator signed a union card. At
this time Johnson 's machine was not operative and
he was working at miscellaneous jobs, such as
cleanup , until his machine was repaired. His
foreman, Gladys Jordan, and supervisor, Helen
"Lib" Hucks, were present about 10 to 12 feet
away from Johnson's machine. He also testified that
before the organizing campaign began among the
production workers, he spoke in favor of unioniza-
tion to "Lib" Hucks, who was then a "material han-
dler" (or "assistant supervisor").
His version of the events leading up to his
discharge was as follows: When he arrived at work
on April 6, his machine was not operating. Even-
tually it was repaired and then checked by a setup
man, the usual procedure. The machine was
running when the setup man then turned it over to
Johnson. Johnson looked at the machine and said
he could not run it at the speed at which it was set.
The setup man said that Foreman Jordan had or-
dered Johnson to operate it precisely as it was.
Johnson thereupon went to see Jordan and said that
he could not produce quality work at the high
speed at which the machine was set, which Johnson
estimated at 16,000 pieces per hour. Jordan in-
sisted that he run it as is Johnson further testified
that the raw material to be run was of very poor
quality. After speaking with Jordan, he tried to
operate the machine. In his words:
I tried to run it , I couldn 't do much with it, it
was running too fast, it was breaking, the work
was real bad, it was about as bad work as I
have ever had in the five years I was there.
* * *
... the material was warped up, when it
come out it would break, punch a hole through
my screen . I would have to stop and change
screens, and I got a lot of, it was running so
fast what work did go on the belt was doubling
up, and I'd have to pick those off. I just
couldn 't do much with it.
After the lunchbreak, another operator ran the
machine for an hour, while Johnson made screens
because so many had been broken by the faulty
material. At or about 3:45 Lib Hucks informed him
that he was to go to Jordan 's desk and then to the
personnel office Jordan handed him his discharge
notice and he then proceeded to personnel, where
he spoke to Personnel Director Edgar and Foremen
Jordan and Rockett
Jordan testified as follows: The machine was set
at 8,000 per hour on her instructions . The material
being run was size .500 discs, which are among the
larger sizes produced by Respondent . The "quota,"
or break-even point, for that size disc is 37,850 per
day. This means that , with the compensation rate of
30-1 /2 cents per 1,000 , an operator will earn his
guaranteed minimum wage of $1.54 per hour by
painting approximately 37,850 size .500 discs per
day. However , employees generally are expected to
produce more than the break -even quota, thus
earning more than the guaranteed hourly rate Ac-
cording to Jordan , the average operator should
produce around 47,000 or more per day, earning
around $1 . 75 per hour . Setting the machine speed
at 8,000 per hour would, according to her, afford
about that amount of production, with the usual
time out for replacing screens, lunch and coffee
breaks, etc. She testified at another point, however,
that with the machine set at 8,000 per hour the
operators "usually run between 50,000 and 60,000
per 7-1/2 hours." These figures are about 32 per-
cent to 58 percent above the break-even point.
Production Manager Robert L. Eberhart testified
that quotas are established generally so that the
operators will average 25 percent more than their
base hourly rates.
Jordan further testified that when Johnson in-
sisted he could not run the machine at the speed at
which it was set, she had employee MacArthur Ed-
wards run it for about half an hour, during which
time he produced 3,800 pieces , while Johnson ran
another machine. She then had setup man Elwood
Stevens run it for an hour , during which he
produced 8,000 pieces. According to Jordan, John-
son was at this time washing-not making- screens.
She then sent Johnson back to operating it but he
produced only about 3,500 to 4,000 per hour. Jor-
dan said she "didn't feel like he was trying." She
thereupon discharged him. Jordan denied having
any knowledge that Johnson was prounion.
354-126 O-LT - 73 - pt I - 66
t026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the following reasons, in addition to careful
observation of the witnesses' demeanor, the Trial
Examiner rejects Respondent's contention that it
discharged Johnson for cause, uninfluenced by his
union activities.
Neither Edwards nor Stevens, who allegedly ran
the machine satisfactorily on the day in question,
was produced as a witness . They were the obvious
persons to testify as to the operation of the machine
and the raw material Additionally, Johnson had
testified that the machine was running at a rate of
about 16,000 per hour, while Jordan said it had
been set at 8,000. Stevens, the man who set the
machine up, was in a position to provide relevant
testimony. Instead of producing the lower ranking
employees with direct personal knowledge, Respon-
dent produced only higher ranking personnel, such
as General Foreman Carter and Personnel Director
Edgar, whose knowledge was hearsay several steps
removed from the facts.
Johnson testified that the incident in question
was the first time the setup man had set the speed
of the machine, previously the operator had always
been able to adjust the speed of his own machine.
Jordan testified that she had ordered the machine
to be set at 8,000 and had controlled the rate of
speed since about February or March of 1967. She
did not suggest that the change in the nature of her
operations was pursuant to orders trom higher
authority. Production Manager Eberhart, however,
testified that about 6 months to a year before the
hearing in August he, "as management ... in-
structed the setup man that he would set the speed
of the machines." Eberhart was asked whether an
operator was allowed to reduce the speed of a
machine if he received bad raw material. His reply
was: "Yes, or I would think that he would call a
setup man and have a setup man work with him ....
The proper instructions for the setup man would
be to set this machine back a little slower and see if
the quality would get better, yes." Further, Line
Foreman Patterson testified that a machine opera-
tor is permitted to adjust his own machine "except
when he abuses it."
Additionally, the General Counsel adduced un-
contradicted evidence that two employees, Jimmy
Roy Skipper and Ronald W. Larrimore, had quit
their jobs on the shift just before Johnson's because
the raw material on which they were working was
defective and their foreman had refused to take it
off. Upon leaving, Skipper took a handful of the
pieces, which were introduced into evidence. Many
of the discs in evidence are warped to a substantial
degree visible on casual inspection. Respondent's
witnesses acknowledged that warped discs will
break the screens in the paint machines and other-
wise cause difficulties According to Eberhart, the
warped discs in any batch of raw material should
not exceed 3 percent. The discs in the record,
'0 In its brief , Respondent says " All machines for that size disc are set at
that same speed , and the other operators make it without any
which were taken at random from the material
being processed at the time, appear to contain con-
siderably more than 3 percent warped pieces.
There is no dispute that the raw material Johnson
was working on was the same as that on the prior
shift and that he was operating the same machine
that Larrimore was running when he quit.40
Johnson testified that when Jordan insisted that
he run the machine at the speed set, he asked to see
Production Superintendent Walker. Although it
was company policy that employees were free to
talk to Walker at any time on any problems, Jordan
denied Johnson's request When Johnson reported
this fact to Edgar, Edgar summoned Jordan and
Line Foreman Rockett. According to Johnson's un-
contradicted testimony, Jordan explained her con-
duct by saying that "in the state of mind [Johnson]
was in, he was in no condition to see anybody."
Johnson was nonetheless discharged without being
afforded an opportunity to speak to Walker.
The employee report concerning Johnson's
discharge says in part:
[his employee's services are being ter-
minated ... as unsatisfactory for insubordina-
tion and disregard for all previous warnings
about poor attitude and disposition
The report summarizes Respondent's version of the
events on April 6 and concludes:
This condition has been tolerated over one
week as his incentive earnings indicate.
Jordan suggested, and Respondent repeats in its
brief, that "Johnson's past job attitude was to per-
form satisfactorily upon the high rate jobs but when
the slow rate jobs such as the 500 discs came
through then he would look for something else to
do." This general complaint was unsupported by
any detail and is not reflected in any employee re-
ports. Further, Foreman Patterson testified that the
rate of pay for .500 discs was set so that "a com-
petent operator running the .500's for a given
length of time may run fewer but could expect to
make about the same money as a competent opera-
tor running any other size disc." At the time in
question, Johnson did not ask for another assign-
ment; what he requested was simply that the
machine be slowed down. His own self-interest
would dictate his operating the machine at the
fastest speed practicable.
Presumably to support the accusation of past
misconduct, Respondent introduced two other em-
ployee reports on Johnson. One, dated February
28, said he had been cautioned about leaving his
department without permission to talk with another
employee. Jordan testified that Johnson had been
spoken to before but she did not know how long
this conduct had been going on. She testified that
on February 28 "I told him we just couldn't allow it
any longer and I would have to put in an employee
report on him, that it was very much against our
problems " Respondent conspicuously omits any reference to the Lar-
rimore and Skipper resignations
AEROVOX CORPORATION OF MYRTLE BEACH, S.C.
rules." The report says that Johnson "stated when
the time came that he couldn't talk with another
operator in another department about work it was
really bad at Aerovox." Respondent did not present
any evidence that Johnson had been conversing on
nonwork matters; the purpose of Johnson's alleged
trips to other departments was apparently deemed
irrelevant to the offense. The second report, dated
March 14 , recited the fact that , without permission,
Johnson had worked through his lunch period and
then left work early, telling his superior that he was
leaving to take his child to a doctor. The report
concluded:
He has been advised that we will not tolerate
any further disregard for any of our rules &
regulations on his part and any recurrence of
this will result in dismissal or disciplinary ac-
tion.
These two reports, taken at face value, bear little
relationship to the alleged misconduct on April 6.
Their wording and tone give them all the ap-
pearance of "record building" to support a later
discharge.41
Discrediting Jordan's disavowal of knowledge of
Johnson 's union views and activities , the Examiner
finds, on all the evidence, that Johnson was dis-
criminatorily discharged for his union activities, in
violation of Section 8(a)(3).
c. The layoff of Mary Mishoe and Arlene Hucks
Mary Mishow and Arlene Hucks were both
"material handlers" or "assistant supervisors" on
the third shift in the disc department. There is no
substantial disagreement that the terms "material
handler" and "assistant supervisor" are inter-
changeable.
The circumstances surrounding their layoff are
essentially undisputed . On the night of Friday, May
19, they both reported to work wearing union
badges Mishoe testified that her supervisor said he
was ashamed of the girls who were wearing union
badges. She worked the entire shift that day. About
15 minutes after she had arrived at work at mid-
night on Monday , May 22, Foreman John King told
her he had orders to send her home and that she
was to report to Robert Edgar , personnel manager,
at 9 a .m. Tuesday. Arlene Hucks' situation was es-
sentially the same as Mishoe 's: she wore a union
badge Friday night42 and then was sent home Mon-
" In the course of cross-examination , Jordan produced six prior em-
ployee reports concerning Johnson Although these prior reports were not
offered in evidence , examination of Jordan disclosed that four were dated
in 1964 and two in 1965, the most recent being April 3, 1965, 2 years be-
fore the earliest in evidence Jordan could not explain why Johnson had not
been discharged earlier, on the basis of four or five reports " that say his
quality needs improvement " Further cross -examination disclosed that the
report of April 3, 1965, stated that the quality of his work had improved
and he had " I b Iecome a good employee "
" Hucks ' testimony was "My supervisor , Tony Wilder , came up and
asked me why I was wearing that nasty old badge, and I answered 'Just
mostly for kicks , why, do you think Ishould take it off' He said ' no, the
damage has been done now,' and he dropped the subject "
" Mishoe 's testimony was "He asked me if I had ever worked for a
1027
day night , to report back to the personnel office at
9 a.m. Tuesday.
On Tuesday morning Edgar told each of the two
employees that she had been sent home because
she had worn a union badge . He asked each of
them if she had been active in the Union Each of
them assured Edgar she had not been active and
had worn the union badge on Friday on a dare.43
After Edgar spoke with Mishoe and Hucks in-
dividually , he and Production Superintendent
Walker spoke to them together . Both Edgar and
Walker advised them that they were part of
management and thus could not participate in
union activities . They were then asked to stay on to
attend a supervisors ' meeting , which they did.
It was on this same day, May 23, that the third
shift was discontinued and all third -shift employees
were laid off.44 Several of the laid-off third-shift em-
ployees were given jobs on the first or second shift,
but neither Mishoe nor Hucks was offered any such
transfer and neither had been recalled at the time
of the hearing in this case
Respondent concedes that if Mishoe and Hucks
are determined not to be supervisors , Walker's and
Edgar 's statements to them were violative of Sec-
tion 8(a)( I). Respondent maintains, however, that
their status cannot be litigated in the present
proceeding because it was conclusively determined
in Case I1-RC-2539 that " assistant supervisors"
are supervisors under the Act. In the hearing in that
case certain stipulations were made by Respondent,
represented by its present counsel , and the Union,
represented by its business manager. Basically the
parties there stipulated that-
All supervisors so styled at Aerovox Corpora-
tion together with all foremen , and all assistant
foremen, and all assistant supervisors where
ever they may be located at Aerovox Corpora-
tion of Myrtle Beach are supervisors within the
meaning of the Act.
At other points in the representation hearing,
stipulations were entered naming specific persons,
and their titles , considered to be supervisors.
Although several " assistant supervisors" were
named and Respondent 's counsel stated that a list
of persons recited " comprises the supervisory per-
sonnel in the Disc Department," neither Mishoe
nor Hucks was specifically designated , although
they had then been material handlers for 4 or 5
months. When the general stipulation quoted above
Union , and I told him 'no,' and he told me that he had, that he had worked
under a strain the whole time he had worked under it, and he asked me why
I wore the Union badge, and I told him 'well, I had been talking to people,'
and they had dared the women out there to wear them, and the women out
there were scared to wear them , and I put it on and wore it to show them I
weren 't scared to wear it, and he wanted to know if I had ever took any part
in it, and I told him 'no, other than to put on the Union badge and wear it to
work,' and he said well, if he knew that I was wearing that Union badge to
be working for the Union, he would fire me, but being I didn't know that I
wouldn 't be covered under the Union if it went in, he would put me on tem-
porary lay-off " Walker testified that he told the two women that he had
heard rumors that they were active in the Union He could not recall from
whom or under what circumstances he had heard the rumors
44 One department, not here relevant , continued to work the third shift
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was made, the Hearing Officer said "it isn 't practi-
cal at this time to get the names of these super-
visors, and we cannot do it, so we are accepting this
type of stipulation."
In his Decision and Direction of Election, the Re-
gional Director designated a production unit, and
delineated the exceptions only in the following
general terms:
excluding office clerical employees, profes-
sional employees, all employees in the certified
maintenance unit , guards and supervisors as
defined in the Act.
The Regional Director thus did not undertake to
determine any questions of eligibility. Respondent
apparently recognized that unit placement issues
were not determined by the Regional Director,
since the eligibility list it provided included the
names of several "assistant supervisors," including
Mishoe and Hucks Mishoe voted at the election,
under challenge by Respondent.45 Respondent chal-
lenged three voters on the ground that they were
assistant supervisors. The Union challenged one
voter on the same ground.
The present issue was thus potentially presented
to the Regional Director by challenges to ballots.46
There were a total of 66 challenged ballots. On
September 19, the Regional Director decided 48 of
the challenges, sustaining 7 and overruling 41. As
to the remaining challenged ballots, which included
those cast by "assistant supervisors," he said "the
contentions of the parties and/or the evidence relat-
ing to the duties and responsibilities of the chal-
lenged voters is in conflict which can best be
resolved by record testimony." The 41 ballots held
valid were then opened and counted The result of
the election was then- 335 for the Union and 307
against. Since the remaining 18 challenged ballots
were thus not determinative, no hearing was held or
decision rendered by the Regional Director con-
cerning the status of Mishoe or other assistant su-
pervisors.47
The Trial Examiner rejects Respondent's conten-
tion that litigation of the supervisory status of
"assistant supervisors" is precluded in the present
proceeding by Section 102.67(f) of the Board's
Rules and Regulations, which reads in part:
The parties may, at any time, waive their right
to request review. Failure to request review
shall preclude such parties from relitigating, in
any related subsequent unfair labor practice
proceeding, any issue which was, or could have
been, raised in the representation proceed-
ing ....
While the Board's decisions are not entirely
uniform, the better view appears to be that a com-
plaint proceeding alleging violations of Section
45 Hucks did not vote because she was out of town for personal reasons
w The facts here stated are taken from the record in Case I i-RC-2539,
of which the Examiner takes official notice
"T On November 16, after the close of the third hearing in the present
proceeding , the Regional Director issued a Second Supplemental Decision
overruling Respondent's objection to the conduct of the election and certi-
8(a)(1) and (3) (rather than a failure to bargain in
violation of Section 8(a)(5)) is not a subsequent
unfair labor practice proceeding "related" to the
representation proceeding within the purview of the
regulation. See Amalgamated Clothing Workers of
America [Sagamore Shirt Co ] v N.L.R.B., 365
F.2d 898 (C.A.D.C.).
Additionally, the waiver provision of the regula-
tion by its terms applies only to the parties to the
representation proceeding. In the representation
proceeding, the Regional Director was not a "par-
ty," but served rather in an administrative, in-
vestigative, and decisional capacity. Unless the
Board may now, in this essentially adversary
proceeding, litigate the factual issue presented,
Mishoe and Hucks, as employees, will have gone
unheard. The Board's responsibility to protect the
statutory rights of employees cannot be nullified by
agreement of employers and unions. Cf.
Southbridge Sheet Metal Works, Inc., 158 NLRB
819, 826, enfd 380 F.2d 851 (C.A. 1); Mitchiyoshi
Uyeda, d/b/a Udaco Mfg. Co., 164 NLRB 700, citing
Shoreline Enterprises of America, Inc., 262 F.2d 933
(C.A. 5).
The Trial Examiner thus holds that the super-
visory status of Hucks and Mishoe was properly
litigated in this proceeding and is here to be de-
cided.
The basic functions of "material handlers" are to
see that the materials to be processed in their sec-
tions are available and that the finished work is
generally satisfactory before it is passed on to the
inspectors and thence to the quality control depart-
ment. The evidence establishes that material han-
dlers have no authority to hire or fire or to make ef-
fective recommendations with respect thereto.
Similarly, they cannot take disciplinary action. At
most, they may report to their superiors derelic-
tions they may observe on the part of other em-
ployees, but any action is taken by the superiors
after investigation.4' Material handlers are not per-
mitted to leave their work areas without securing
permission from their superiors. Nor are they per-
mitted to excuse any worker who may desire or
need to be away from work Mishoe testified that,
at full production, there was a maximum of four
other people working her section and for some time
before she was laid off there was only one person in
addition to herself in her section. Hucks testified
that in times of full production there would be from
six to eight persons in her section but at the time
she was laid off there were only two workers in ad-
dition to her. When serving as such, material han-
dlers are paid on an hourly basis, whereas straight
production workers are paid on a production- incen-
tive, or essentially piecework, basis, with a guaran-
fying the Union On January 3, 1968 , the Board denied Respondent's
request for review
4' An assistant supervisor may occasionally sign or initial an employee re-
port However , setup man John Martin, a nonsupervisory employee, was
asked to and did sign the employee report concerning the discharge of Phil-
lip Hucks See infra
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1029
teed minimum. Mishoe testified that, as a produc-
tion worker, she had earned as high as $2.70 to
$2.80 per hour, with her average running around
$2.50 to $2.60, whereas, as a material handler, she
received only $1.45, plus a 5-cent shift differential,
per hour Material handlers, like rank-and-file
production workers, wear red identification badges;
supervisors, assistant foremen, and foremen wear
black identification badges. The Company's in-
surance program is conducted in two classes,
managerial and nonmanagerial. Production Su-
perintendent Walker testified that the two classes
are divided at the "black-badge" level, that is,
assistant supervisors, who wear red badges, are in
the insurance program for rank-and-file employees,
whereas supervisors and all higher echelon person-
nel are in the mangerial insurance program 49
In seeing that sufficient materials are available
for processing and that the finished products are
generally satisfactory, material handlers are
authorized to give some orders to the production
workers in their sections. However, such orders or
instructions are of a routine nature and the material
handlers have no scope for independent judgment
or discretion. ITT Federal Electric Corp., 167 NLRB
350 In addition, material handlers generally work
with their hands and spend a substantial portion of
their time performing actual production functions,
such as running machines. In the Respondent's or-
ganizational table, assistant supervisors are listed in
factory, as distinguished from supervisory, classifi-
cations.
Mishoe and Hucks both testified that, although
they were made material handlers in January and
February, respectively, they had never been told
they were "supervisors" or invited to attend any su-
pervisors' meetings until May 23, the day they were
laid off Corey Bros., Inc., 162 NLRB 1253.
Walker testified that the position of assistant su-
pervisor is-
a training ground for supervision. That is your
first step. I mean you get in, you make out
good, you're showing yourself a good super-
visor, you are learning all the time, and then
you graduate from one class to another....
Assistant supervisors and supervisors attend classes
given periodically at the Company by a Clemson
professor. However, setup man Roberts, a nonsu-
pervisory employee, apparently also attended
Mishoe and Hucks apparently had not attended.
The Board has held that a person in training for a
supervisory position is not a supervisor, particularly
where, as here, it is entirely speculative if or when
he will actually become a supervisor. Hilton-Burns
Hotel Co., Inc., 167 NLRB 221.
Walker also testified that at the time of the hear-
ing there were 6 to 7 foremen and 10 to 13 super-
visors in the disc department, with a total employ-
ment of about 150 on two shifts. In normal times,
with full production, there are generally about 20
supervisors in the disc department. If the 18 to 25
material handlers generally in the disc department
were to be included in the supervisory category
along with the supervisors and foremen, the ratio of
employee to supervisors would be not more than
5:1 or 4:1, an uncommonly low ratio. See Welsh
Farms Ice Cream, Inc., 161 NLRB 748.
On all the evidence,50 the Trial Examiner con-
cludes that Mishoe and Hucks were not supervisors
within the Act Accordingly, Respondent violated
Section 8(a)(1) of the Act when it admittedly
prohibited them from wearing union badges and
participating in union activities.51 Similarly, it is
clear that Respondent violated Section 8(a)(3) of
the Act when it sent them home on Monday, May
22,52 because of their having worn union badges on
May 19, and, according to Walker, because of ru-
mors he had heard that they were engaging in union
activities.
It is undisputed that on May 23 the entire third
shift of the disc department, on which Mishoe and
Hucks worked, was laid off for economic reasons.
Some of the third-shift employees were given jobs
on other shifts.53 The General Counsel maintains
that Respondent's failure to recall Mishoe and
Hucks after the layoff of May 23 was discrimina-
torily motivated. Respondent, on the other hand,
maintains that-
... there is no evidentiary showing upon the
record of any existing job availability for either
Mishoe or Hucks through the date of hearing
of this matter in August. The Disc Department,
third shift has not be reinstated . and ap-
proximately 25 to 30 percent of the total work
force of Respondent was still on layoff ....
The record establishes that several third-shift em-
ployees laid off on May 23 were transferred to the
first or second shift in jobs other than those they
had been performing on the third shift Mary Lou
Richardson, the only other third-shift material han-
dler laid off, was returned as a line operator on the
first shift on May 29 14
Asked the basis for determining which laid-off
employees would be given jobs on the first or
second shift, Walker testified as follows.
. . it is a blend of their abilities, their skill,
4' This testimony was adduced by questioning by the Trial Examiner
Thereafter, in answer to questions by Respondent's counsel, Walker
testified that he was not an expert concerning the Company's insurance
program However, Respondent did not thereafter present any evidence
concerning the insurance program
so Angeline Stanley, a material handler, testified on behalf of Respon-
dent Her testimony , generally consistent with that of Mishoe and Hucks,
also shows that material handlers do not exercise truly supervisory authori-
ty but are escPntiaily similar to expediters, or leadmen with the potential
for future supervisory status
" Respondent also violated Section 8 ( a)( I) when Foreman Patterson
asked Arlene Hucks if employee Harrelson had solicited fort he Union
52 Accurately this time was about 12 15 a m , Tuesday, May 23
"Some employees, including James Phillip Hucks (see infra), were
transferred to the Hi-Rel Department , which continued to work the third
shift
'" She was then discharged for cause on June 20 There was no evidence
concerning her replacement, if any
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the amount of jobs they can do, their absentee-
ism, how dependable they are; if they are here
every day, and so forth and so on, .. .
Personnel Director Edgar said the Company's pol-
icy on layoffs was a "combination" of seniority and
ability or skill, with seniority the decisive factor "if
everything is equal."
Mishoe's undisputed testimony was that she had
worked for Respondent for 5 years and 8 months,
during which time she had missed only 3 days'
work. She also testified without contradiction as
follows concerning her experience:
I have been a catcher on the DSMR
machine; I have been a utility girl; I have
worked on the feed-through machine; I have
worked on the eyelet machine, C. N. axle
machine; fired ovens; run a TSC machine; I
have stripped carriages, I have sorted work,
and cleaned leads, and dipped Durez, and I
was a first aid nurse on third shift.
Respondent's counsel offered to stipulate that "the
reason that she was made assistant supervisor was
because her work was excellent .... because of
her background of that sort of work." Respondent
similarly admitted that Hucks was an excellent
worker. Their promotions to assistant supervisor
status presumably reflects Respondent's judgment
of their superiority to the remaining rank-and-file
employees in the department.
In its brief, Respondent says:
... Both [Mishoe and Hucks] had secondary
classifications, Arlene Hucks as a catchet
which job she would perform should she be
returned to production, and Mishoe as a durez
dipper which job she would perform should she
be returned to production.. .
Respondent then proceeds to state that neither
catchers nor durez dippers laid off have been
returned to work and employees in both classes are
still on layoff. This argument, however, ignores the
established fact that other employees were recalled
for jobs other than those they had previously held
and Walker's unequivocal testimony that com-
petent employees would be recalled for jobs in
which they had had no prior experience. One would
normally expect that the superior employees laid
off would be the first recalled.
Walker also testified as follows concerning his in-
terview with Mishoe and Hucks on May 23
We told them at the time that they were on the
management team, and that they could not be
on the management team and attend [union]
meetings like that .. we told them that if they
had any leanings in that direction, they
couldn't be on the management team, and we
would have to find them a job out in the plant
or something like that ...
Yet no attempt was made to place these employees
on the first or second shift.
In view of all the facts, the inference is inescap-
able that Respondent's failure to offer Mishoe and
Hucks employment on the first or second shift was
dictated by displeasure at their having worn union
badges and the belief that they were union sym-
pathizers.
Respondent put in evidence a list of laid-off
third-shift employees, which shows that one em-
ployee was recalled on May 25, nine on May 29,
three thereafter, and three on unspecified dates.
Respondent's list states that Phillip Hucks (infra)
was returned to work on May 29. Hucks testified,
however, that he started back to work on May 24,
on the first shift, where he was trained to operate a
laminating press for a week or two and then put
back on the third shift. Walker testified that he be-
lieved some employees were recalled within a day
or two after May 23. However, since Mary Lou
Richardson, the only material handler in addition to
Mishoe and Hucks who was laid off on May 23, was
not recalled until May 29, the Examiner finds that
Respondent's discriminatory failure to recall
Mishoe and Hucks commenced on May 29, and will
order backpay from that date.ss
4. The discharge of Robert Grimm
Robert Grimm, hired by Respondent on
November 23, 1965, was discharged on August 11,
1967 At the time he was working as a slip caster in
the Hi-Rel Department on the third shift (midnight
to 8.30 a.m.).
Grimm testified that he attended about eight
union meetings, talked to employees about the
Union on his breaks, and wore a union pin or badge
for about 3 to 5 months preceding the election in
July. For the first month he wore a small blue
badge and then a large white one with red letter-
ing.56 Employee Lamar Sellers, testifying on behalf
of the General Counsel, said that Grimm "wore a
union badge, I guess, a week or two, and then wore
it the day of the election," in July. Sellers generally
was somewhat vague as to dates. John Martin, a
setup man on the third shift, who was called as a
witness by Respondent, testified that he could not
recall Grimm's having worn a union button, but he
also conceded that he "[d]idn't pay any attention."
The Trial Examiner credits Grimm's testimony con-
cerning the union badge. On all the evidence, the
Trial Examiner finds that Grimm's support of the
Union was so open and extended that it was known
to Respondent.
Respondent's version of the discharge is as fol-
lows: Grimm was a machine operator on the third
shift. At the time in question, there was no regu-
ss,This is in addition to backpay for the I-day layoff of May 22 (1 e
midnight to 8 30 a in of May 23 )
56 Grimm indicated the size of the badge with his hands and then adopted
Respondent's counsel's estimate of 4-inch diameter Other evidence, how-
ever, indicates that the large union badges were probably around 2 inches
in diameter
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1031
larly assigned third-shift foreman, Foreman John
King having quit a month or two before. Around
August 8 Kenneth Johnson, second-shift
foreman, began to stay over for from 2 to 5 hours
on the third shift and Karl Allen, first-shift foreman,
with general supervisory authority over all three
shifts, came in a few hours before the beginning of
the first shift.
Kenneth Johnson testified that on August 11 he
was watching Grimm closely and observed him on
two occasions leave his work area and go to con-
verse with another employee, Lamar Sellers. Ac-
cording to Johnson, the first conversation lasted
about 3 to 5 minutes and the second about 4 or 5
minutes.58 As Grimm was returning to his work sta-
tion the second time, Johnson stopped him and said
something about the matter. According to Johnson,
Grimm replied, in picturesque and profane lan-
guage, that it was none of Johnson's business John-
son thereupon suspended Grimm and ordered him
to leave because of his cursing and challenging
Johnson to go outside and fight with him. At that
point Grimm went to the foreman's desk, saying he
wanted to telephone Allen. According to Johnson,
Grimm wanted to open and search Allen's desk to
find his home telephone number. Johnson
prohibited Grimm's using the telephone or opening
Allen's desk. When Grimm refused to leave the
premises Johnson called a guard, who escorted
Grimm out of the building. When Allen later ar-
rived, Grimm was outside the plant sitting in Sel-
lers' car, waiting to ride home with Sellers. At
Grimm's request an employee asked Allen to go out
to see Grimm About 5:30 a.m. Allen did so and
there discharged Grimm.
Grimm testified as follows: He went to the water
fountain, which was very near Sellers' work station.
After having a drink of water, Grimm stopped just
long enough to ask Sellers when and where he was
going to have his break. According to Grimm, the
conversation took about 20 or 30 seconds. Sellers
corroborated Grimm in all significant respects.
Neither Grimm nor Sellers was cross-examined
concerning a possible prior conversation between
them that night, even though Johnson testified that
there had been one.
On his way back to his machine, Grimm was
stopped by Johnson. They had words, including
profanity by both of them, according to Grimm.
Although Johnson denied having used any curse
words himself, Respondent's witness Martin quoted
both Grimm and Johnson as having done so.
Grimm testified that he wanted to telephone Allen
but denied that he made any move to open Allen's
desk to find his home telephone number.
The evidence in connection with both the Phillip
Hucks ( infra) and the Grimm discharges indicates
strongly that the employees-at least those on the
third shift-did not like Kenneth Johnson and were
reluctant to recognize him as their supervisor or
foreman. Grimm conceded that a short while be-
fore he was discharged he and another employee
had refused to obey Johnson's order to clean a
machine because Karl Allen had not told them to
do so. Sellers corroborated the testimony of both
Hucks and Grimm that Johnson "was on them"
from the beginning of his practice of staying on
after the end of the second shift. Sellers said that
Johnson immediately "started giving us all orders, .
.. he just stood there and watched us."59 Johnson
conceded that it was within 3 days, at most, after he
started to supervise on the third shift that he
criticized the workers for having "excessive" scrap
and instructed them henceforth to include within
good work types of units which they had thereto-
fore been putting in scrap.
When asked the specific reason for Grimm's
discharge, Johnson said it was "For threatening &
using abusive language to a foreman." Grimm
readily conceded that he had used curse words but
said that Johnson had also. Grimm testified that it
was Johnson who issued the challenge to go outside
and fight, whereas Johnson ascribed the threat to
Grimm. Johnson did, however, concede that he
wanted to fight Grimm.
Foreman Allen's written statement of the reason
for Grimm's discharge is broader than Johnson's
testimony. Allen's statement refers to some specific
incidents and continues:
I reminded Bobby [Grimm] that he had an em-
ployee report in on him and several minor in-
cidents which did not get a report and that this
added up to the fact that he was not perform-
ing his job to satisfaction and that I was in
complete agreement with the foreman, Ken
Johnson..
The record shows, however, that on June 5,
1967, just 2 months earlier, Grimm had been given
a wage increase, with an employee report which
read:
The above employee's performance are lsic]
satisfactory. He cooperates and works well
with others
On that report Grimm was rated as "good" in abili-
ty, efficiency, personal qualifications, and physical
qualifications. Inconsistently, there are adverse em-
ployee reports about Grimm dated April 22 and
June 14-both before and after the wage increase.
Both of these rate him generally as only "fair," as
distinguished from the "good" evaluation on June
5.60 The reprimand of June 14, 9 days after the rate
57 The day the second round of hearings in this proceeding commenced
59 Asked if 3 to 4 minutes was an excessive time for an employee to be
away from his work , Johnson said it "is getting on the verge of being exces-
sive "
59 Sellers , who also had been active for the Union, testified that about 2
weeks after Grimm was discharged Sellers quit because "they was in after
me so, I figured that they were going to fire me anyway, so 1 Just went ahead
and quit I have never been fired , and didn't want to be fired "
9° Assistant Foreman Gladys Johnson prepared the report of April 22,
which stated that Grimm had been caught dozing and "was warned of his
actions and if there is a re-occurance Fsic I necessary action will be taken
She also prepared the June 5 recommendation for a raise
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase, stated that Grimm had been warned about
going home without permission and that "This is
the second time within three (3) weeks he has been
told that this will stop or action will be taken." The
Trial Examiner credits Grimm's testimony that he
had become ill at work and had told Foreman King
that he was going home because of illness.
As with other employees involved in this
proceeding, the Examiner cannot escape the in-
ference that Respondent was "building a record" to
justify discharge of Grimm, a satisfactory employee.
If the Trial Examiner had any doubt as to the
pretextual nature of Respondent's discharging
Grimm, the doubt would be obviated by an unex-
plained inconsistency in Respondent's evidence.
The employee report prepared by Johnson and
dated "8-11-67" summarizes Johnson's version of
the Grimm incident and ends with the note: "See
attached statement." The "attached statement" is
one by Karl Allen. Johnson testified that he wrote
his report, put it in Allen's desk, and then left the
plant before Allen arrived Johnson was then
questioned as to the note, "See attached state-
ment." In explanation, Johnson said that his
original written report had not contained that note
but had set forth in graphic detail the profanities ut-
tered_b-y- Grimm. According to Johnson, when he
arrived at work the next day he was instructed by
Allen to rewrite the report so as to delete the offen-
sive detail and simply refer to "strong, threatening
and abusive language. "61 At one point, however, he
also testified that Allen had written the words "See
attached statement " Those words appear to be in
the same handwriting as the rest of the report, in-
cluding Johnson's signature The Johnson report in
the record was obviously written after the fact,
since it says: "Ken Johnson did not tell Grimm that
he was fired, but he was told later that morning by
the day shift foreman Karl Allen." Allen testified
that he prepared his statement after he read the one
Johnson had left in his desk and after he had
spoken to Grimm. But Allen was clear that he
discharged Grimm and wrote his report before
Johnson returned to work the next day. And Allen
unequivocally denied ever having seen any report
by Johnson which set forth the details of Grimm's
allegedly profane language. Allen was certain that
the Johnson report as it appears in the record is ex-
actly the same as the one Allen found in his desk
when he came to work on the morning in
question.62 As it appears in the record, Allen's "at-
tached statement" is typewritten and dated "Au-
gust 15." Asked concerning that date, Allen could
surmise only that that was the date on which his
statement, originally handwritten on August 11,
had been copied by a typist. Neither Johnson's
original report nor the handwritten original of Al-
len's statement was produced. Allen's typewritten
statement is addressed "To Whom It May Con-
cern " He testified, however, that the salutation was
directed only to persons within the Company and
there was no intention that the statement be "pub-
lic" or available to persons outside the Com-
pany. He could not, however, provide any reason
why a purportedly intraoffice memorandum was
typed, as it was, on company letterhead.
In view of this confusion and conflict, the Trial
Examiner is unable to credit either Johnson63 or Al-
len.64
One further circumstance should be noted. John-
son testified that he did not discharge, but simply
suspended, Grimm. Allen thereupon discharged
him on the basis of only Johnson's original report
and a conversation with Grimm, in which, accord-
ing to Allen, Grimm denied having cursed but ad-
mitted having invited Johnson outside the plant.
Allen did not explain why he precipitately
discharged Grimm without consulting Johnson to
find out why the latter had not immediately exer-
cised his admitted authority to fire Grimm on the
spot 65
On all the evidence, the Trial Examiner finds that
Robert Grimm was discriminatorily discharged in
violation of Section 8(a)(3).
e The Discharge of James Phillip Hucks
Phillip Hucks was discharged on August 15.
Hucks had been a union activist from the beginning
of the campaign among the maintenance workers,
having been at that time a setup man and thus
within the maintenance unit.66 He testified on be-
half of the General Counsel in the present proceed-
ing on August 8 and 9. Respondent does not deny
having had knowledge of Hucks' union sympathies
and activities.
Respondent maintains that Hucks was discharged
for sleeping on the job. At the time in question,
Hucks was operating a laminating press on the third
shift, which works from midnight to 8:30 a.m.
s' Johnson's report as it appears in the record says Grimm used "Very
strong Cursing languet I sic) to his Foreman "
sz Referring to the Johnson report in the record, Allen said "That is the
original report there that he left me "
' The General Counsel requested that the Trial Examiner take judicial
notice of the fact that another Trial Examiner had previously discredited
Johnson as a witness in Franklin Brass Products, 151 NLRB 800, 804 In
discrediting Johnson in the present proceeding, the Trial Examiner relies
solely on Johnson's demeanor and the evidence in the present proceeding,
with no consideration given to the Trial Examiner's action in Franklin
Brass
w The Trial Examiner's conjecture is that the Johnson report and the
Allen statement were prepared cooperatively sometime after the fact Sig-
nificantly, neither is signed by Grimm and there is no evidence that he was
asked to sign either, although he had signed the adverse report of April 22,
1967 In contrast , James Phillip Hucks (see infra ) was twice requested to
sign the employee report on his discharge According to him, he acceded to
the second request to assure that the report would not later be changed
One of Harrelson 's employee reports contains the notation "Employee
given opportunity to sign this report but refused "
ss In explaining why he had refused to allow Grimm to telephone Allen,
Johnson said , inter alia, "the authority I have is just as strong as the line
shift foreman "
ss He actually voted in both elections, having been transferred from
maintenance to production around May 23, when most of the third shift
was discontinued See Mishoe's and Arlene Hucks ' layoff, supra
AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1033
There was no regular foreman on the third shift at
the time. For a week, Production Foreman Karl Al-
len, who regularly worked on the first shift, had
been coming to work a few hours early to supervise
the third shift (See discharge of Robert Grimm,
supra.) Allen testified that on the morning in
question he arrived at work 5 or 5:30. Hucks was
asleep with his machine in full operation. Allen
walked over to and shook Hucks to wake him up.
According to Allen, he had observed Hucks asleep
for about 10 to 15 seconds. As Hucks' head was
down on the table, Allen bent down to observe
Hucks' eyes and found they were closed. Allen then
shook Hucks to wake him up, whereupon Allen
turned around and walked out of the room. Allen
testified that during the entire period, from the time
he entered until he left the room, Hucks' machine
was in full operation.
The machine in question operates on a cycle
which can be initiated only by the operator's push-
ing a button, when a cycle has been completed, the
machine stops operating until it is reactivated by
the operator's pushing the button. Hucks testified
that when the machine was running 7-layer materi-
al, as it was at the time in question, the operating
cycle takes about 20 to 25 seconds. Employee Sel-
lers judged the duration of the cycle as 20 seconds.
Setup man Martin, called as witness by Respon-
dent, said the cycle for 7-layer material took about
15 or 16 seconds. Allen testified, without any cor-
roboration, that the cycle was from 30 to 45
seconds-closer to 45. The Trial Examiner dis-
credits Allen67 and finds that the cycle took about
20 seconds.
In view of the duration of the cycle, it would be
virtually impossible for anybody to activate the
machine and then fall asleep before the cycle
ended. As Respondent's witness Martin testified, an
operator would "have to go to sleep right fast" to
do so between the beginning and end of the
machine's cycle. Had Allen said that Hucks had
simply dozed off, his testimony might have been
somewhat more plausible, but Allen emphatically
stated that Hucks "wasn't dozing ... he was asleep
and his eyes were closed "68 The Trial Examiner
credits Hucks' testimony that his head was down at
the time because he was checking to see that the
material was going through properly.
Employee Clarence L. Smith, who testified on
behalf of Respondent, worked within a few feet of
Hucks, and, when operating his machine, faced in
Hucks' direction. Smith did not see Hucks asleep
on the night in question. Setup man Martin, also
called by Respondent, testified that "a lot" of em-
ployees doze off on third shift and he did not know
of anybody who had been fired for doing so. Smith
denied ever having seen anybody sleeping on the
job but reluctantly admitted that he had heard of
such conduct. Assistant Foreman Gladys Johnson,
who had worked for Respondent about 12 years,
had never discharged anybody for dozing on the
job. 69
The employee report on Hucks' discharge said,
inter alia : "We have had extensive damage done to
these mach. with Phillip was operating which we
feel that was negligence on the operators part.
[sic]" Allen testified, however, that Hucks was
discharged for sleeping, not for "negligence."
Moreover, Allen testified that no damage was done
to the machine at the time in question and he was
unable affirmatively to attribute any damage of the
machines to Hucks' or any other employees' having
fallen asleep. He admitted that he did not believe
that any damage to the machines had been due to
Hucks' sleeping.
Hucks' employment history with Respondent is
significant. On June 10, 1963, shortly after being
hired, he was given a merit increase from $1.20 to
$1.25 per hour. The request for increase, signed by
Department Head Walker, said: "Performs his
present job very well and accepts extra duties and
responsibilities and requires very little supervision."
About 6 weeks later he received a further merit in-
crease to $1.33 per hour. This time Production
Manager Eberhart wrote: "This man is an excellent
worker and very dependable. In my opinion he is
one of the best men I have in this section " On
January 17, 1964, he was given an increase to
$1.38 per hour A year later he was raised to $1.75,
his foreman writing: "Capable and efficient. Willing
to accept responsibility outside of immediate area."
Then in October 1966 he was raised to $2 20 per
hour, the employee report reading: "Employee's
services has [sic] been very satisfactory and we are
in agreement that he should be given top rate-
$2.20." Additionally, in each of the years 1964,
1965, and 1966 Hucks had perfect attendance, for
which he was heartily congratulated by Respon-
dent.
After all these accolades, under date of
December 1, 1966, there appears an employee re-
port reading:
Employee was cautioned about his attitude
towards fellow employees and his responsibili-
ties, which has been less than satisfactory for
about a month ....
That report was made by Bellamy, who was not
Hucks' foreman. Hucks credibly testified that he
had never seen that report until the day he was
dismissed, over 8 months later. The Trial Examiner
finds it significant that the date of the first adverse
6' The Trial Examiner has heretofore discredited Allen's testimony in
connection with the discharge of employee Robert Grimm, supra
w Allen repeated this thought when asked why on previous occasions
employees Grimm and Hucks had been simply reprimanded for sleeping on
the job His reply was "There was quite a difference between Phillip
(HucksI and Grimm Phillip was not asleep the best I remember, and it ap-
peared that Grimm had his head laying down on the table, and was possibly
dozing, but Phillip was not in this state of steepness "
61 Allen testified that after March 1967, when he assumed charge of this
department, two people in addition to Hucks had been discharged for
sleeping on the job One of the two was employee Jackie Causey However,
Allen later said that Causey "quit on his own more or less "
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report coincides closely with the appearance of the
Union among the maintenance workers.
On all the evidence, including careful observa-
tion of the demeanor of all witnesses, the Trial Ex-
aminer finds that James Phillip Hucks was
discharged for his union activities in violation of
Section 8(a)(3) of the Act.
Hucks was discharged within a week after he
testified on behalf of the General Counsel in the
present unfair labor practice proceedings. How-
ever , that fact alone is insufficient to warrant a
finding that his discharge was based in any part on
his testifying in this proceeding. Accordingly, the
Trial Examiner will recommend dismissal of the al-
legation that Hucks' discharge was violative of Sec-
tion 8(a)(4).
CONCLUSIONS OF LAW
1. Respondent, Aerovox Corporation of Myrtle
Beach, South Carolina, is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act
2. International Brotherhood of Electrical Work-
ers, AFL-CIO, Local Union No. 382,is alaboror-
ganization within the meaning of Section 2(5) of
the Act.
3. Respondent engaged in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(1) and 2(6) and (7) of the Act by maintaining
an invalidly broad no-distribution rule, questioning
employees concerning the union activities of other
employees, threatening discriminatory action based
on employees' union sympathies; threatening ad-
verse economic consequences if the employees
selected the Union as their collective-bargaining
representative, and suspending nonsupervisory em-
ployees for wearing union badges.
4. Respondent engaged in unfair labor practices
affecting commerce within the meaning of Sections
8(a)(3) and (1) and 2(6) and (7) by: discharging
employees Ernest Bethea Martin, Munick Carl
Hucks, Julius Virgil Roberts, George Lawrence
Harrelson , John B . Johnson , Robert J. Grimm, and
James Phillip Hucks, suspending employee E L
Martin for 3 days; and suspending employees Mary
E. Mishoe and Arlene Hucks and thereafter failing
to recall them from layoff.
5. Respondent did not engage in any unfair labor
practices within the meaning of Section 8(a)(4) of
the Act.
6. It has not been established by a preponder-
ance of the evidence that Respondent engaged in
any unfair labor practices other than those specifi-
cally found herein.
THE REMEDY
The Trial Examiner recommends that Respon-
dent be ordered to cease and desist from its unfair
labor practices and take certain affirmative action,
including rescission of the broad no-distribution
rule published in its employee handbook and
posted on its premises.
In addition it is recommended that Respondent
be required to offer Ernest Bethea Martin , Munick
Carl Hucks, Julius Virgil Roberts, George
Lawrence Harrelson, John B. Johnson, Robert J.
Grimm , and James Phillip Hucks immediate rein-
statement to their former or substantially
equivalent positions and to offer employees Mary
Mishoe and Arlene Hucks positions for which their
experience qualifies them or for which they can be
trained on the job . The above -named employees
and E. L. Martin shall be made whole for any loss
of earnings suffered by them as a result of the dis-
criminatory treatment herein found, backpay, with
interest , to be computed in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716. Backpay
for Mishoe and Hucks shall include pay for May 23
(third shift on the May 22 workday) when they
were sent home and for the period commencing
May 29, 1967.
Upon the foregoing findings of fact and conclu-
sions of law and upon the entire record in this case,
pursuant to Section 10(c) of the Act, the Trial Ex-
aminer recommends issuance of the following-
ORDER
Aerovox Corporation of Myrtle Beach, South
Carolina, its officers , agents, successors , and as-
signs, shall:
1. Cease and desist from:
(a) Questioning employees concerning the union
activities of other employees ; threatening adverse
economic consequences of the employees' selecting
International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 382, as their collec-
tive-bargaining representative ; threatening dis-
-riminatory action because of employees' union
sympathies or activities ; and maintaining a rule
prohibiting the distribution of written or printed
material by employees in nonworking areas on non-
working time.
(b) Discouraging membership in and activities
on behalf of the aforesaid Union , or any other labor
organization , by discharging , suspending , or refus-
ing to reinstate or recall any employees , or in any
other manner discriminating in regard to hire or
tenure of employment , or any term or condition of
employment.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of their right to self-organization , to form
abor organizations , to join or assist the aforenamed
Union , or any other labor organization, to bargain
collectively through representatives of their own
choosing , and to engage in other concerted activi-
ties for the purpose of collec tive bargaining or
other mutual aid or protection , or to refrain from
engaging in such activities.
2. Take the following affirmative action which
vill effectuate the policies of the Act:
(a) Rescind without delay the broad no-distribu-
AEROVOX CORPORATION OF MYRTLE BEACH, S.C.
tion rule as published in the employee handbook
and posted on the premises.
(b) Offer immediate and full reinstatement to
Ernest Bethea Martin, Munick Carl Hucks, Julius
Virgil Roberts, George Lawrence Harrelson, John
B. Johnson, Robert J. Grimm, and James Phillip
Hucks to their former or substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges.
(c) Offer to Mary E. Mishoe and Arlene Hucks
immediate employment in positions for which their
experience qualifies them or for which they can be
trained on the job, without prejudice to their
seniority or other rights and privileges.
(d) Make the aforenamed employees and E L.
Martin whole for any loss of earnings suffered by
reason of the discrimination against them, in the
manner set forth in the Trial Examiner's Decision.
(e) Notify the aforenamed employees if
presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(f) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(g) Post at its Myrtle Beach, South Carolina,
plant, copies of the attached notice marked "Ap-
pendix."70 Copies of said notice, on forms provided
by the Regional Director for Region 11, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof
and be maintained by it for 60 days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director for Region 1 1,
in writing, within 20 days from the date of receipt
of this Decision, what steps have been taken to
comply herewith.71
The complaint is dismissed insofar as it alleges
violations of the Act other than those found in this
Decision.
'0 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 1 1 , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
1035
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL offer the following employees their
former jobs and pay them for wages lost since
their discharge:
Ernest Bethea Martin
Munick Carl Hucks
Julius Virgil Roberts
GEORGE LAWRENCE
HARRELSON
John B. Johnson
Robert J. Grimm
JAMES PHILLIP HUCKS
WE WILL offer employees Mary F. Mishoe
and Arlene Hucks jobs for which they are
qualified or for which they can be trained
on the job and will pay them for wages lost
on May 23, 1967, and since May 29,
1967.
WE WILL pay employee E. L. Martin for
wages lost when he was suspended without pay
for 3 days.
WE hereby rescind our rule prohibiting the
distribution _ by - employees of literature,
pamphlets, or handbills and WILL permit such
distribution in nonwork areas by and to em-
ployees when not on working time.
WE WILL NOT question our employees con-
cerning the union sympathies and activities of
other employees or request employees to re-
port to us on such matters.
WE WILL NOT threaten loss of jobs or other
adverse economic consequences because the
employees join a union or select it as their col-
lective-bargaining representative.
WE WILL NOT discharge, suspend, or in any
other manner discriminate or threaten to dis-
criminate against any employees because they
join or support a union ; nor will we dis-
criminate or promise to discriminate in favor
of any employees because they do not join or
support a union.
All our employees are free to become or remain,
or to refrain from becoming or remaining, members
of International Brotherhood of Electrical Workers,
AFL-CIO, Local Union No. 382, or any other labor
organization.
AEROVOX CORPORATION
OF MYRTLE BEACH,
SOUTH CAROLINA
(Employer)
Dated By
(Representative ) (Title)
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1624 Wachovia Building , 301 North Main
Street, Winston-Salem, North Carolina 27101,
Telephone 723-2392